ARGUMENT. 

OF 

r>.    M.    DELMAS,    Esq. 

Counsel  for  the  Bondholders  in  the  Cas 

DUPONT    STREET    BONDS. 
Before  THE   SUPREME   COURT  of  California, 

^  '  '   '      '     I  (til   and    1  oi  II,    I  ,~..~)6. 


7»«      1 


4:. 


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ARGUMENT 

D.  N/I.   DELN/IAS,    Esq., 

Counsel  for  the  Bondholders  in  the  Case  of  the 

DUPONT    STREET    BONDS. 


Before  THE  SUPREME  COURT  of  California. 

May  it  please  your  Honoi^s  : 

These  proceedings  are,  in  form,  a  suit  in  equjty  to 
enjoin  the  collection  of  a  tax.  In  substance,  they 
are  an  attempt  to  repudiate  the  payment  of  one 
million  dollars  of  bonds,  issued  by  the  City  of  San 
PVancisco  in  payment  of  a  f^reat  public  improve- 
ment. .  Representing  the  interests  of  persons  who 
have  invested  their  money  in  the  bonds  issued 
under  the  statute  commonly  called  the  Dupont 
Street  Act,  I  shall  address  myself  solely  to  the 
questions  which  affect  the  validity  of  the  bonds. 

h  iq^pfiars  that,  in  i<S76,  the  Legislature  of  the 
State;  {>assed  an  Act  provldinsj^  the  means  and 
poinliiiL^  r)ut  the  machinery  for  widening  I)u[)ont 
Street,  in  the  City  of  San  Francisco.  The  y\ct 
was  not  to  go    into  o[)erali()n    until    the  Hoard    of 


Super\'isors  had,  by  clue  resolution  or  order,  ex- 
pressed their  judgment  that  it  was  expedient  to 
widen  the  street  in  accordance  with,  and  in  the 
mode  prescribed  by,  said  Act.  The  Mayor,  Aud- 
itor and  Surveyor  of  the  city  were  constituted  a 
Board  of  Commissioners  to  carry  out  the  provis- 
ions of  the  Act.  They  were  to  appraise  the  dam- 
ages and  benefits  accruing-  from  the  opening  of  the 
street.  Their  report  was  to  be  approved  and  con- 
firmed by  the  County  Court.  After  the  final  con- 
firmation of  the  report,  bonds  of  the  City  of  San 
Francisco,  payable  in  twenty  years,  were  to  issue^ 
and  be  sold  at  not  less  than  ninety-five  cents  on 
the  dollar,  to  pay  for  the  cost  of  widening  the 
street. 

It  appears  that  the  Board  of  Supervisors,  in  due 
time,  passed  the  resolution  and  order  provided  for 
by  the  Act;  that  the  Board  of  Commissioners  made 
their  report  to  the  Court,  and  the  Court  approved 
and  confirmed  it  ;  that,  thereupon,  one  million 
dollars  of  bonds  of  the  City  of  San  Francisco,- 
signed  by  its  Mayor,  Auditor  and  Surveyor,  and  bear- 
ing its  seal,  were  issued  and  sold  ;  and  that  the 
street  was  then  opened,  and  has  ever  since  re- 
mained a  public  street  of  the  city. 

These  bonds  are  in  the  hands  of  persons  who 
bought  and  paid  for,  or  otherwise  acquired  them 
in  good  faith.      They  are  held  not  only  by  private. 


C3 

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C  2.  S5  c/ 


individuals,  but  by  public  institutions — the  Uni- 
versity of  California,  alone,  having  $40,000  of 
them, 

A  proceeding,  which  would  now  permit  the  city, 
while  retaining  and  enjoying  the  fruits  of  these 
bands,  to  repudiate  its  obligation,  may  be  justified 
by  some  rule  of  law  ;  but,  in  the  minds  of  ordinary 
men,  must  appear  repugnant  to  the  plainest  dic- 
tates of  justice  and  fair  dealing.  I  hope  to  show 
that  a  proper  construction  of  the  law  and  the  pro- 
ceedings had  under  it  will  avoid  these  unjust 
results. 

I  shall,  in  the  following  argument,  seek  to  estab- 
lish these  sp':icific  propositions  : 

1.  The  Dupont  Street  Act  is  free  from  any 
constitutioual  objection. 

2.  The  proceedings  provided  by  said  Act  for 
the  widening  of  Dupont  Street  have  been  strictly 
followed  by  the  Board  of  Supervisors,  the  Board 
of  Commissioners,  and  the  County  Court. 

3.  The  judgment  of  the  County  Court  is  a 
conclusive  adjudication  in  [ill  collateral  actions, 
that  (i)  the  stejxs  required  to  be  taken  by  the  Su- 
pervisors and  Commissioners  to  give  validity  to 
their  proceedings  have  been  duly  taken  according 
to  the  law  ;  and  (2)  that  the  Act  itself  is  constitu- 
tional 

.'5()()412 


4-  The  bonds  issued  under  the  Act  are  nego- 
tiable, and  have  all  the  qualities  and  privileges  of 
commercial  paper,  and  the  interveners  are  bona 
tide  holders  thereof. 

5.  These  bonds  being  executed  and  issued  by 
the  Board  of  Commissioners,  the  recital  therein, 
that  they  are  issued  in  pursuance  of  the  Statute  is, 
in  favor  of  a  bona  fide  holder,  a  conclusive  adju- 
dication that  everything  which  the  Act  required 
the  Commissioners  to  do  was  done  by  them  ;  that 
is,  that  all  the  steps  between  the  adoption  of  the 
resolution  by  the  Board  of  Supervisors  and  the 
judgment  of  the  County  Court  were  regularly 
taken. 

6.  The  City  of  San  Francisco  is  estopped  to 
deny  the  validity  of  these  bonds,  because,  (  i  )  its 
retention  of  the  fruits  of  the  bonds  estops  it  from 
alleging  any  informality  in  the  proceedings  which 
led  up  to  their  issue  ;  and  (  2  )  its  own  action  in  vol- 
untarily adopting  the  Statute,  and  reaping  the 
benefits  conferred  by  it,  estops  it  from  avoiding 
the  burdens  which  the  Act  imposes,  upon  the 
ground  of  its  unconstitutionality. 

7.  If  these  bonds  are  valid  against  the  munic- 
ipality, their  validity  can  not  be  attacked  by  any 
member  of  the  municipality. 


Though  the  importance  of  the  cause  and  the 
fact  that  the  Court  has  ordered  a  reargument  will 
warrant  and  demand  a  full  discussion  of  the  ques- 
tions, both  upon  principle  and  authority,  yet  I 
cannot  forbear  expressing  my  conviction  that  such 
a  discussion  is  really  foreclosed,  first,  by  the  estop- 
pel created  against  the  plaintiffs  by  the  statute 
itself;  and,  secondly,  by  the  decision  of  this  Court 
in  the  analogous  case  of  San  Francisco  vs.  Certain 
Real  Estate,  42  Cal. 

First. — The  statute  provides  the  mode  and  ma- 
chinery for  the  widenino;-  of  Dupont  Street.  The 
Act,  however,  is  to  remain  inoperative,  unless  the 
Board  of  Supervisors  of  the  municipality  express 
their  judgment,  by  ordinance,  that  it  is  "expe- 
dient that  Dupont  Street  be  widened  in  accord- 
ance with  and  in  the  mode  prescribed  by  this 
Act."  (^  21).  Should  such  judgment  be  expressed 
by  the  Supervisors,  the  Board  of  Du])ont 
Street  Commissioners,  created  by  the  Act,  are  to 
give  published  notice  that  the  Board  is  organized 
(§  6).  Within  thirty  days  from  said  publication, 
the  owners  of  a  majority  in  value  of  the  property 
fronting  on  the  street  may  interpose  their  veto  to 
the  further  prosecution  of  the  work  (^  12).  Should 
no  such  veto  be  int(:r[)os<(l,  lh(::  l)oard  ot  Com- 
missioners are  to  proceed  with  the  making  of  an 
estimate  of  damage  occasioned  and  benefits  con- 
ferred  by  the  f>[>ening  of  the  street   within  a  dis- 


trict,  whose  limits  are  actually  giv^en  by  the  Act 
(§  7).  When  these  labors  of  the  Board  are  ended, 
they  embody  them  in  the  shape  of  a  written  report. 
Such  report,  as  soon  as  completed,  is  left  for  thirty 
days  in  the  office  of  the  Board  for  the  inspection 
of  all  parties  interested,  and  notice  that  the  same 
is  so  open  for  inspection  is  given,  for  twenty  days- 
in  the  public  journals  (§  7).  At  any  time  within 
the  thirty  days  mentioned,  any  person  in  interest 
may  file,  in  the  County  Court,  his  written  objec- 
tions to  the  report.  The  Court  is  empowered  to 
hear  and  pass  upon  the  objections  so  made  { §  8). 
When  the  report  of  the  Board  is  finally  confirmed 
and  approved  by  the  County  Court,  the  Board 
issue  bonds  of  the  City  and  County  of  San  Fran- 
cisco in  a  sum  sufficient  for  the  payment  of  the 
damages  awarded  (§  9).  Parties  to  whom  dam- 
ages are  awarded  must,  before  receiving  payment 
thereof,  execute  a  deed  of  conveyance  to  the  mu- 
nicipality for  the  land  for  which  the  damages  are 
given  (§  10).  The  bonds  are  to  be  paid  by  an 
assessment  or  tax  upon  the  district  benefited  (§  13). 
When  all  damages  are  paid  and  satisfied,  the  Board 
are  to  remove  the  buildings  upon  the  street  and 
widen  the  same  (§  17).  Then  follows  the  all- 
important  Section  22,  in  these  words: 

"  The  completion  of  the  work  described  in  this  Act  shall  be 
deemed  an  absolute  acceptance  by  the  owners  of  all  lands  affected 
by  this  Act,    and  by   their  successors    in    interest,   of  the    lie 


created  by  this  Act  upon  the  several  lots  affected.  *  *  * 
This  shall  be  regarded  as  a  contract  between  said  owners  and 
the  holders  of  said  bonds.'' 

The  present  action  is  brought  by  all  the  owners 
of  land  affected  by  the  Act,  to  enjoin  the  enforce- 
ment of  the  Hen  created  by  the  Act  upon  their 
property.  The  averments  of  their  complaint  are 
as  follows: 

The  "order  and  decree  of  said  County  Court,  approving  and 
confirming  said  report  (of  the  Board  of  Commissioners)  recites 
specifically  that  every  step  required  by  said  Act  was  taken  by 
said  Board  of  Supervisors,  by  said  Board  of  Dupont  Street 
Commissioners,  and  Idv  said  Court,  and  said  proceedings  all 
appear  to  be  regular  on  their  face  and  make  a  prima  facie  lien 
on  all  the  said  estate  and  lands." 

The  complainants,  however,  attack  these  pro- 
ceedings for  alleged  secret  vices,  not  disclosed 
upon  the  face  of  the  record  of  the  proceedings, 
and  discoverable  only  by  an  investigation  in  pais. 
These  alleged  defects  are  that:  i,  the  ordinance 
of  the  Board  of  Supervisors  (^21  of  the  Act)  was 
not  published  in  the  manner  provided  by  law ; 
2,  the  notice  required  to  be  given  by  the  Board  of 
Commissioners  of  their  organization  (|^  6)  and  of 
the  completion  of  their  report  {%  7)  were  not  jjub- 
h'shed  as  reqin'red  by  law — the  onl\-  objections 
against  the  publication  Ix-ing  that  they  took  place, 
at  times,  in  the  supplement,  instead  of  the  body  of 
the  paper;  3,  the  Iioanl  of  Commissioners  were 
guilty  of  misconduct  and  fraud  in  making  their 
report;     4,   the   re[>ort   of  the    Commissioners,  as 


finally  confirmed,  shows  that  the  damages  of  the 
improvement  exceed  the  benefits. 

If  we  add  to  these  the  claim  that  the  statute  is 
unconstitutional,  we  shall  have  before  us  all  the 
objections  urged  by  the  plaintiffs ;  and,  as  to  the 
unconstitutionality  of  the  Act,  it  is  clear  that  since 
the  late  decision  in  People  vs.  Bartlett,  6  W.  C.  R., 
that  claim  cannot  successfully  be  urged. 

It  is  admitted  that  the  work  described  in  the 
Act  has  been  completed.  Finding  XXXVI  of 
the  Court  is  in  these  words: 

"That  after  the  said  confirmation  by  the  said  County  Court 
and  during  the  first  seven  months  of  the  year  1877,  the  said 
Dupont  Street  between  Market  and  Bush  Streets,  was  actually 
widened  on  the  ground  from  an  original  width  of  forty-four  feet, 
to  a  width  of  seventy-four  feet,  measuring  westerly  from  the 
original  and  present  east  line  of  said  Dupont  Street,  by  the  re- 
moval of  the  buildings  thereon,  and  the  turning  of  the  same  into 
a  roadway  and  sidewalk;  and  during  the  first  seven  months  ot 
the  year  1877,  the  buildings  and  improvements  on  the  west  side 
of  said  Dupont  Street^  taken  from  said  Market  to  Bush  Street, 
were  made  to  conform  to  the  new  line  of  the  said  street  as  wid- 
ened thirty  feet,  and  so  still  remain  ;  and  said  thirty  feet  has 
since  the  month  of  July,  A.  D.  1877,  been  devoted  to  the  uses 
and  purposes  of  a  public  street,  and  has  been  used  and  is  still 
used  as  such  by  the  public  at  large. " 

This  action  was  commenced  on  the  4th  of  April, 
1879,  two  years  and  three  months  after  the  work 
of  actually  widening  the  street  had  been  com- 
menced, and  two  years  less  four  months  after  it 
had  been  completed. 

The  plaintiffs  do  not  deny  full  knowledge  of  all 


that  was  done  under  and  in  pursuance  of  the 
Statute.  They  do  deny  knowledge  of  the  al- 
leged secret  frauds  and  misconduct  of  the  Board. 
(§  XX  of  Complaint.)  But,  that  they  knew  that 
the  Board  of  Supervision  had  passed  an  ordinance! 
that  the  Board  of  Commissioners  had  given  pub- 
lished  notice  that  they  were  organized  ;  that  the 
Board  had  m.ade  their  report,  and  left  it  in  their 
office  for  public  inspection  for  thirty  days  ;  that 
they  had  given  published  notice  that  the  re- 
port was  so  open  for  inspection  ;  that  the  report 
had  been  presented  to  the  County  Court,  and  by 
it  confirmed  ;  that  one  million  of  bonds  had  been 
issued  and  sold,  and  the  proceeds  applied  to  the 
payment  of  the  damages  awarded  ;  that  deeds  of 
conveyance  had  been  executed  to  the  municipality 
for  the  land  taken  for  the  widening  of  the  street  ; 
that  the  buildinofs  along:  the  whole  west  line  of  the 
street  had  been  removed  and  torn  down  during  a 
period  of  seven  months,  and  then  the  street  wid- 
ened and  mad('  a  public  street — these  things  and 
th(;  knf)\vl(.'dge  of  these  things  the  plainllffs  (.lo  not 
deny.  Indec^l  they  could  not,  without  perjury, 
deny  them,  for,  one  of  these  very  plaintiffs  L. 
Carniveau — appeared  bef(;re  the  Couiil)  Court  and, 
upon  objections  made  to  the  report  of  the  Commis- 
sioners, obtained  a  reduction  of  assessment. 
(Trans.,  pp.  316,  317.) 


10 

Years  after  all  this  had  been  done,  all  the  par- 
ties affected  by  the  widening  of  this  street  (p.  409), 
including-  those  who  have  made  voluntary  convey- 
ances to  the  City,  and  have  received  from  the  pro- 
ceeds of  the  bonds  tens  and  hundreds  of  thous- 
ands of  dollars,  upon  an  award  to  them  of  damages, 
all  these  parties  unite  in  an  attempt  to  repudiate 
the  payment  of  these  bonds,  to  evade  the  tax 
imposed,  and  to  invoke  the  aid  of  a  Court  of  Equity 
to  enjoin  its  collection. 

Such  an  attempt,  with  all  its  attendant  dishon- 
esty, was  foreseen  by  the  framers  of  this  law  ;  and 
they  set  their  face  against  it ;  and,  by  anticipation, 
legislated  it  down.  They  made  the  accomplish- 
ment of  such  a  nefarious  purpose  a  legal  impossi- 
bility by  providing,  in  the  twenty-second  section 
of  the  Act,  that  the  completion  of  the  work  de- 
scribed in  the  Act — the  conferring  upon  the  prop- 
erty of  the  benefits  contemplated  by  the  law — 
should  be  deemed  by  the  property  owners  an 
acceptance  of  the  burdens  imposed  by  the  Act. 

If  I  understand  aright  the  meaning  of  this  pro- 
vision, it  creates  an  absolute  estoppel  upon  the 
property  owners  by  which  they  are  forbidden  to 
contend  that  all  things  provided  by  law  necessar)r 
to  the  legality  of  the  proceedings  were  not  done. 

This  introduces  no  aew  principle,  but  simply 
crystalizes  in  the  shape  of  an  express  statutory 
provision,  a  rule  of  universal  application  in  the  ad- 


1 1 

ministration  of  justice,  which  finds  expression  in  the 
old  maxims — ''Qui  sentit  commodum  sentire  debet 
et  onus  ;"  ''qui  facet  concentire  videtur  ubi  tracta- 
tur  de  ejtis  commodo!' 

These  principles  have  been  of  constant  applica- 
tion in  cases  of  this  character  : 

In  Weber  vs.  City  of  San  F7'ancisco,  i  Cal.  455, 
an  assessment  was  laid  on  certain  property  bene- 
fited by  a  street  improvement,  which  had  been 
inaug'urated  by  an  ordinance  of  the  Common 
Council.  After  the  zuork  had  been  co7npleted,  plain- 
tiff brought  suit  in  equity  to  enjoin  the  collection 
of  the  assessment,  claiming  that  it  was  unauthorized 
and  invalid  for  various  reasons — among  others,  the 
insufficiency  of  the  ordinance. 

The  Court,  there  laying  down  in  clear  and 
terse  language  the  doctrine  for  which  I  contend, 
said  : 

"An  assessment  was  laid  for  the  purpose  of  ini[)roving  a 
street,  andth.-rcby  benefiting  the  property  of  the  plaintiff  in  com- 
mon with  the  property  of  the  persons  owning  lots  on  the  same 
street.  The  work  has  been  completed ;  and  after  the  plaintiff 
has  derived  all  the  benefit  and  profit  therefrom,  and  after  the 
contractors  luith  the  city  have  expended  their  labor  and  monev 
to  impro'i'c  the  plaintiff's  lots,  he  comes  into  Court,  when  he  is 
called  upon  to  pay  his  proportion  of  the  expense,  and  asks,  in 
effect,  that  he  may  be  exempted  from  the  general  burden,  im- 
posed for  the  common  benefit  of  himself  and  others,  on  the 
ground  that  there  are  some  irregularities  in  the  mode  of  mak- 
inf^  the  assessments.  /  think  that  should  not  be  permitted. 
The  plaintiff  asks  for  the  equitable  interposition  of  the  Court 
to  prevent  a  sale  of  his  land  by  the   defendants ;     but  every 


12 

principle  of  equity  and  justice  demands  that  the  plantiff  should 
pay,  and  it  is  one  of  the  first  maxims  of  jurisprudence,  that 
'  he  who  asks  ec^uity,  must  do  equity'  *  *  Had  the  plain- 
tiff instituted  proceedings  before  the  work  was  commenced, 
and  enjoined  the  city  from  making  the  improvement,  I  should 
have  felt  it  necessary  to  inquire  into  ti-.e  validity  of  the  ordi- 
nance, by  virtue  of  which  the  assessment  was  made  and  sale 
ordered,  and  into  the  powers  of  the  Common  Council,  under 
the  Charter,  to  make  the  assessment  in  the  way  they  did 
make  it.  As  the  case  fioia  comes  up,  I  do  not  deem  this  in^ 
qtiiry  necessary.''' 

In  Patterson  vs.  Baumer,   43   Iowa,  477,  482 — 

an  action  to  restrain  the   collection  of  taxes  levied 

upon  certain  lands  to  pay  for  the  construction  of  a 

ditch,  it  was  insisted  that  there   were  many  illegal 

acts  of  the  county   authorities   in   laying   out  the 

ditch  which  invalidated  the  assessment. 

The  Court  said :  "  While  the  work  of  constructing  the 
ditch  was  undertaken,  because  demanded  by  the  public 
interests,  yet  the  petitioners  being  land  owners  in  the  vicinity 
of  the  improvement,  were  interested  therein.  They  must  all 
be  presumed  to  have  had  notice  of  the  action  of  the  couuty  in 
ordering  the  work,  and  in  causing  tt  to  be  prosecuted.  Some 
of  them  signed  the  petition  to  the  Supervisors,  asking  that  the 
work  be  done.  They  cannot  be  presumed  to  have  been  ignorant 
of  any  irregularities  up  to  and  including  the  letting  of  the 
contract.  They  should  have  objected  thereto  before  the  ex- 
penditure of  money  and  labor  by  the  County  and  contractor. 
The  law  will  not  permit  them  to  remain  silent  until  ajter  the 
work  is  done,  and  then  raise  such  objections  to  defeat  the  col 
lection  of  taxes." 

Where  a  person   obstructed   a    street,    claiming 
that  the  Act  under  which  it  was  opened,    was   un- 


constitutional,  the  Supreme  Court  of  Pensylvania 
— Pittsburg  vs.  Scott,  i   Barr.,  309,  357,   said  : 

"  The  defendant  stood  by  and  saw  the  city,  without  a  whisper 
of  objection  on  his  part,  make  large  expenditures  and  valuable 
improvements,  not  only  to  the  street,  but  to  the  landings,  to 
which  he  now  asserts  title.  His  objections  are,  therefore,  neither 
supported  by  law,  nor  has  he  any  equity  to  favor  his  pretensions." 

"  'Upon  what  principle  of  exalted  equity,'  asks  the  Supreme 
Court  of  Kentucky,  in  Fej-guson  vs.  Latidra7fi,  5  Bush.,  230, 
'  shall  a  man  be  permitted  to  receive  a  valuable  consideration 
through  a  statute  procured  by  his  own  consent,  or  subsequently 
sanctioned  by  him  or  from  ivhich  lie  derives  an  interest  and  con- 
sideration, and  then  keep  the  consideration  and  repudiate  the 
statute  as  unconstitutional  ?  *  *  *  These  men  must 
return  the  consideration  they  have  voluntarily  received,  before 
they  shall  be  heard  to  assail  the  action  and  statutes  by  which 
they  have  received  it." " 

Where  certain  swamp  lands  were  drained  and 
the  plaintiff — in  Kellogg  vs.  Ely,  15  Ohio  St.,  64, 
67 — claimed  immunity  from  an  assessment  for  the 
cost  on  the  ground  that  the  p7'oceedings  tinder  the 
statute  were  defective,  the  Supreme  Court  of  Ohio 
answered  : 

"  When  the  different  sections  of  the  ditch  were  let  to  the  low- 
est bidder  and  when  the  first  spade  had  been  thrust  into  the 
earth  in  the  execution  of  the  contract  then  made,  before  the  con- 
tractor.-, had  expended  any  money  or  the  laborers  any  sweat, 
then,  if  ever,  the  remedy  l)y  injunction  was  open  to  the  plaintiff 
below.  But  he  did  not  invoke  it.  It  does  not  appear  by  the 
record  that  he  ever  warned  the  contractors  or  lalwrers  that  he 
intended  for  himself  to  resist  the  collc(  tion  of  the  as.sessment, 
which  must  follijw  to  raise  the  money  to  pay  them  ;  but,  remain- 
ing inactive  and  silent  until  his  swamp  lands  were  drained  by  a 
ditch  nearly  a  mile  in  length,  he  then,  for  the  first  time,  asked 
the  interpsition  of  a  Court  of  Equity.  We  think  he  comes  too 
late." 


14 

In  Wiggin  vs.  Mayor  &  Co.,  of  New   York,   9 

Paioe,  16,  24.      Chancellor  Walworth  said  : 

"  The  proceedings  for  making  the  improvement  were  com- 
menced nearly  five  years  since,  and  the  complainant  has  7vaited 
until  the  improvement  had  actually  been  completed  several  months 
before  he  or  his  agent  had  attempted  to  interfere.  His  property 
has  received  the  full  benefit  that  tt  could  receive  from  the  improve- 
ment, which  benefit  the  commissioners  have  estimated  at  several 
thousand  dollars.  And  as  property  of  other  persons  to  a  very 
large  amount  has  been  destroyed  for  that  purpose,  justice  re- 
quires that  it  should  be  paid  for  by  those  who  have  been  benefited 
by  the  improvement  rather  than  by  a  general  tax  upon  the  aty 
at  large.  A  Court  of  Equity,  therefore,  at  this  late  day,  will 
not  interfere  with  its  strong  arm  to  cast  the  burden  of  the  im- 
provement from  those  who  have  been  benefited  thereby  and 
upon  those  who  have  not." 

In  the  case  of  Slate  vs.  The  Mayor,  (2fc.,  40  N. 

J.  L.,   244— a  case  of  assessment  for  the  grading 

and  curbine  of  an  avenue — the  Court  said  : 

"  The  main  reasons  assigned  (for  setting  aside  the  assessment) 
are  (1.)  That  the  grading  was  done  and  altered  t^'//"/?*?///  the 
consent  of  a  majority  of  the  property-oivners  ;  (2.)  that  the  al- 
teration was  made  without  payment  to  the  owners  of  buildings 
on  that  section  of  the  avenue  of  the  damages  thereby  sustained; 
(3.)  that  the  grading  was  done  witho7it  the  two  weeks  notice  of 
ititention  in  two  newspapers,  as  required  by  the  Charter  ;  (4.) 
that  the  ordinance  was  passed  without  like  notice  ;  (5.)  that  the 
ordinance  was  not  regularly  passed  ;  (6.)  that  the  ordinance  was 
not  duly  certified ;  (7.)  that  the  ordinance  was  not  passed  by  a 
two-thirds  vote,  as  required  for  the  expenditure  of  money  ;  (8.) 
that  the  ordinance  was  not  published  as  reqtiired,  between  the 
second  and  third  reading  ;  (9.)  nor  published  after  passage  of 
the  ordinance.  *  *  *  *  *  It  is  admitted, 
in  behalf  of  the  City  of  Paterson,  that  there  have  been  irregu- 
larities in  these  proceedings,  and  it  is  also  conceded  that  if  the 
prosecutors  had  acted  promptly,  the  defects  are  such  that  the- 


grading  and  curbing  of  this  avenue  could  have  been  stopped. 
But  it  is  also  contended  that  the  prosecutors  had  actual  notice 
of  these  improvements  before  they  were  made  and  during  their 
progress  ;  that,  with  this  knowledge,  they  permitted  the  work  to 
go  on  to  completion  ;  and,  after  the  city  had  expended  and  ac- 
tually paid  the  whole  cost  thereof,  now  refuse  to  pay  their  re- 
spective assessments,  because  of  these  preliminary  defects.  All 
the  proofs  in  the  case  show  that  they  had  such  notice,  and  there- 
is  no  denial  on  their  part.  They  were  not  in  a  position  to  be 
silent  if  the  city  was  acting  with  a  misapprehension  of  its  right, 
and  under  color  of  authority  given  it  by  the  Charter  to  grade,, 
pave  and  curb  the  streets.  The  first  work  dofie  upo7i  the  land 
of  each,  or  affecting  it,  with  their  knowledge,  was  notice  to  them 
that  the  city  authorities  were  there  with  a  claifn  of  right  to  make 
a  public  improi'ement,  and  if  they  neglected  to  make  the  proper 
inquiries,  or  to  object,  with  an  asserti&n  of  their  rights  as  land- 
07i<ners,  until  the  work  was  done  and  paid  for,  such  conduct  is  a 
waiver  of  all  objections  to  the  right  to  make  such  improvemeyit. 
This  has  become  the  settled  law  in  our  State,  relating  to  such 
improvements.  *  *  *  After  such  acquiescence  in 
the  acts  of  the  city  officers,  and  delay  in  enforcing  their  legal 
remedy,  the  objections  that  may  be  made  by  land-owners  affected 
by  the  improvements  must  relate  only  to  the  apportionment  and 
amount  of  assessment  made  upon  them  for  the  damages- and 
benefits  resulting  from  such  improvements." 

In    The   People   vs.    The   Common    Council,  65 

r3arb.,  9.  21,  a  certiorari    to   review    the   proceed- 

ing.s  of  the  Common  Council  of  Utica,  in  ordering 

the  pavement  of  a  street,  the  Court  said  : 

"At  the  close  of  the  present  term  of  this  Court,  ui)wards  of 
two  years  will  have  elai)sed  since  the  first  proceedings  retiuired 
by  the  Charter  to  authorize  the  making  of  the  said  improvement 
were  initiated  by  the  Common  Council,  and  two  years — within 
sixty  days— since  the  final  ordinance  for  the  construction  of  said 
work  and  the  acceptance  of  the  proi)0sals  therefor  were  passed. 
*  *  The  proceedings  must  have  been  well  known  to  the  relator 
and  to  the  other  property-ojcncrs  in  Genesee  street,  in  whose  behalf 


i6 

the  writ  of  certiorari  issjied  in  this  case.  *  *  *  In  the 
meantime  (between  the  presentation  and  action  upon  the  peti- 
tion and  the  issuance  of  tite  certiorari)  the  work  of  said  improve- 
ment had  been  constructed  and  completed,  and  an  assessment  for 
the  expense  thereof  duly  made  and  confirmed,  and  the  assess- 
ment roll  delivered  to  the  Treasurer  of  the  City  for  collection, 
and  more  than  one-half  of  the  amount  thereof  duly  paid  to  him 
thereupon.  *  *  -^  jy  ^riy  irregularities  or  any  in^ 
formalities  occurred  in  the  proceedings  of  the  Common  Council, 
in  directing  said  work,  or  letting  the  contract  for  its  construction, 
we  are  of  the  opinion  that  after  the  lapse  of  the  time  that  has  in- 
tervened since  the  said  work  was  authorized,  it  would  be  Jinjust 
■and  unreasonable  to  review  said  proceedings  with  the  view  to  re- 
verse them  for  any  such  error.  The  relator  and  thos^  in  whose 
behalf,  as  well  as  his,  the  writ  was  sued  out,  have  lain  by  and 
seen  the  work  constructed  upon  their  street,  for  the  benefit  of  their 
property,  and  should  be  estopped  from  questioning  the  right  of  the 
city  to  make  such  improvement,  in  analogy  to  the  rule  in  equity, 
that  when  a  party  lays  by  and  sees  another  make  valuable  erec- 
tions and  improvements  on  his  land,  supposing  he  is  making 
them  upon  his  own  land,  he  shall  be  estopped  from  afterwards 
setting  up  his  title  to  the  land  so  improved.  The  Common 
Council  are,  in  principle  and  in  fact,  nothing  more  than  agents  of 
the  property-owners  in  ciiies,  in  making  such  improvements,  and 
when  the  property-owners  benefited  thereby  suffer  the  iinprovements 
to  proceed  and  be  completed,  they  should  be  held  to  affirm  the  acts 
of  their  agents  in  constructing  such  work.  As  in  other  cases 
between  principal  and  agent,  where  the  trustees  of  public  or 
private  corporations  act  for  the  benefit  of  particular  individuals, 
such  individuals,  if  they  seek  to  disaffirm  and  avoid  such  acts, 
should  take  prompt  steps  to  do  so,  or  they  will  be  held  to  have 
affirmed  the  same." 

The  case  of  the  State  vs.  Wertzel,  62  Wis.,  184, 
186,  was  an  action  to  recover  a  statutory  penalty 
for  encroachment  on  a  highway.  x'\s  a  defense, 
the  existence  of  the  highway  way  denied.  The 
Court  said  : 


"  We  think  the  defendant  is  not  in  a  position  to  attack  the 
validity  of  the  order  laying  out  the  highway.  *  *  * 
The  acts  of  defendants  grantor  bind  the  defendant.  Such 
grantor  acquiesced  in  the  order  laying  the  highway,  and  erected 
his  fence  on  what  he  supposed  to  be  the  east  line  thereof.  // 
does  not  appear  that  either  the  defendant  or  his  graiitor  ever 
questioned  the  validity  of  the  order  utitil  this  action  was  brought^ 
but  always  theretofore  acquiesced  in  it  as  a  valid  order.  To  allow 
the  defendant  7iow^for  the  first  time,  to  assert  its  validity  fnight 
work  great  injtistice  to  the  town.     *         *         *  These  own- 

ers have  stood  by  and  allowed  the  town  to  expend  large  sums  in 
making  the  highway  and  building  bridges  thereon,  without  raising 
any  question  of  the  validity  of  the  order  laying  it  out.  Under 
these  circumstances  we  think  the  defendatit  and  his  grantor  have 
acquiesced  in  the  validity  of  the  hightvay  altogether  too  long  to 
be  now  heard  to  dispute  it.  We  conclude  therefor,  that  the 
learned  Circuit  Judge  ruled  correctly  in  holding  that  the  order 
*         *         *         was  ruled  and  established  a  legal  highway. ^^ 

In  Qiiinlan  vs.  Alyers,  29  Ohio  St.,  500,  511, 
an  action  to  enjoin  the  collection  of  an  assessment 
for  the  improvement  of  a  road  on  the  ground  that 
the  petition  therefor  had  not  been  signed  by  a 
majorit\-  of  the  residents  and  land-owners,  it  was 
urged  as  a  defense  that  the  plaintiff  had  not  ap- 
plied for  the  injunction  till  the  work  was  almost 
completed,  and  that  he  was  thereby  estopped. 

Said  the  Court  :  "Myers,  (the  plaintiff,)  Tiad  an  election 
either  to  abide  by  and  acquiesce  in  the  report  of  the  reviewers 
(for  laying  out  the  road,)  or  to  institute  legal  proceedings  to  set 
it  aside.  He  elected  to  acquiesce.  The  improvement  was  let 
to  contract,  and  the  contractors  commenced  work  w\)on  it  in 
August,  1867,  of  which  Myers  had  notice  again  ;  he  had  an  elec- 
tion either  to  commence  jiroceedings  to  enjoin  Work  upon  the 
improvement  or  to  accjuicscc  in  what  was  being  done.  He 
chose  the  latter.  The  work  was  suspended  from  September, 
1867,  till  April,  1870;    *         *         *         when  the  contractors 


i8 

again  com nunce J  work  on  the  improvement  of  which  Myers 
had  notice,  and  again  he  elected  to  let  the  work  progress  with- 
out objection  on  his  part.  The  work  was  substantially  com- 
pleted in  the  year  1870;  work  of  the  value  of  about  $1000  only 
remaining  undone.  After  the  work  7vas  thus  substantially  com- 
pleted, and  the  b2nefits  of  the  improvement  thus  obtained^  Myers 
for  the  first  time,  on  the  2gth  of  May,  i8ji,  made  application  for 
an  injunction,  tiot  to  restrain  the  Commissioners  or  the  contractors 
from  7naking  the  improvement,  but  to  restain  the  Auditor  and 
Treasurer  from  collecting  the  assessments  to  pay  for  the  improve 
ment  after  it  was  made. 

"  In  equity,  wherever  the  rights  of  other  parties  have  intervened 
by  reason  of  a  man's  conduct  or  acquiesence  in  a  state  of  things 
about  which  he  has  an  election,  and  his  conduct  or  acquiescence, 
or  even  laches,  was  based  on  a  knowledge  of  the  facts^hewill  be 
deemed  to  have  made  an  effectual  election  ;  and  he  will  not  be 
permitted  to  disturb  the  state  of  things,  whatever  may  have  been 
his   rights  at  first.     Bigelow  on  Estoppel,   508,    33  Iowa,  278. 

"Here  Myers  had  acquiesced  for  nearly  five  years,  during 
which  time,  and  it  might  be  said  by  reason  of  such  acquies- 
cence, the  rights  of  contractors  and  sub-contractors  to  be  reim- 
bursed for  labor  and  materials  employed  in  making  an  improve- 
ment beneficial  to  the  plaintiff  had  intervened,  or  the  county  had 
become  bound  for  the  same  by  issuing  its  bonds  to  the  contrac- 
tors. *  *  *  The  principal  ground  upon  which 
Myers  relies  for  an  injunction  is,  that  the  Commissioners  had 
not  jurisdiction  to  make  the  order  for  the  improvement.  After 
an  acquiscence  of  7iearly  five  years,  during  ivhich  the  work  was 
substantially  completed.  On  every  consideration  of  Justice  and 
eqicity,  Myers  ought  noiu  to  be  estopped  from  denying  his  liability 
to  pay  his  assessments  for  the  completed  improvement,  and  this, 
without  reference  to  7vhether  the  Commissioners  had  jurisdictiofi 
to  order  the  improvement  or  not.        *         *         * 

"  There  is  nothing  shown  in  the  record  that  shields  Myers  from 
the  consequences  of  his  election  and  long  acquiescence  in  what 
was  being  done  toward  the  construction  of  the  improvement, 
and  we  find  that  he  is  now  'estopped from  denying  his  liability  ta 
pay  the  assessments  in  question. " 

In  the  Slate  v.s.  The  Mayor,  36  N.  J.    L.,    158,, 


^9 

a  certiorari  to  review  an   assessment  of  expenses 

for  grading  Fulton  Street  in  the  City  of  Paterson, 

an  the  orround.  amons:  others,    that  the    ordinance 

authorizing  the  improvement  was  invahd,  not  being 

preceded  by  the  pubHc  notice  prescribed    by  law, 

the  Court  said  : 

'■'■  Although  we  catmot ai'oid  the  conchfsion  that  *  *  *  the 
prosecutors  are  sustained  in  their  insistment  as  to  the  n'aiit  of 
notice,  ive  are  satisfied  that  they  are  not  now  iti  a  position  to  take 
advantage  of  it. 

"  There  can  be  little  doubt  that  they  were  aware,  almost  from 
the  first,  of  the  inception  and  progress  of  the  proceedings  now 
before  us.  One  of  them  had  joined  in  a  petition  for  the  grad- 
ing of  Fulton  Street,  as  early  as  July,  1869.  It  is  true  that  this 
street  was  subsequently  vacated  and  relaid.  But  lon^  after  this, 
May  2nd,  1870,  the  prosecutor  referred  to,  Mr.  Woodruff  sent 
to  the  Board  of  Aldermen  a  second  petition  relating  to  the  pro- 
posed improvement.  This  was  about  a  month  after  the  com- 
pletion of  the  work  for  which  the  assessment  in  question  was 
made.  The  Commissioners  finished  the  assessnent  and  made 
their  report  May  21st,  1870,  and  the  writs  in  these  cases  were 
not  issued  until  July  8th,  1870. 

'■'■  However  fatal  the  objection  now  tinde  rconsideration  might  have 
been  if  pro)nptly  acted  upon,  it  cannot  be  allowed  to  prevail  after 
so  much  delay,  and  especially  after  the  improvement  has  been  com- 
pleted and  paid  for  by  the  city.'" 

In  City  of  Nezv  Haven  vs.  J'^air  Haven,  38 
Conn..  422,  432,  an  action  to  recover  an  assess- 
ment for  a  street  improvemeiu,  which  was  resisted 
on  the  j^round  thai  the  corporation  defendant  was, 
under  its  charter,  exempt  from  tli(;  operation  of 
the  assessment  in  question,  it  was  held  that  it  had 
precluded  itself  from   raising  this  objection  by  its 


20 

Standing  by,  without   complaint,    and   acquiescing 

in  the  work  of  improvement  as  it  progressed. 

Said  the  Court : 

"  It  is  a  very  interesting  and  im^x^rtant  question  whether  the 
defendant,  by  objecting  to  these  proceedings  at  the  commence- 
ment, could  have  practically  defeated  the  whole  improvement ; 
but  the  case  before  us  does  not  require  us  to  decide  that  ques- 
tion. The  defendant  suffered  the  city  to  go  forivard  and  incur 
the  expense,  with  full  knowledge  of  the  proceeding,  and  without 
objection  at  the  time.  The  defendant  must  have  known  that  the 
improvement  would  largely  benefit  it  in  the  matter  of  repairs, 
that  the  proceeding  was  under  the  statute,  and  consequently  at  the 
expense,  in  part  at  least,  of  the  parties  benefited.  There  was  no 
reason  to  suppose  that  the  city  was  doing  the  work  of  the  de- 
fendants at  its  own  expense,  or  at  the  expense  of  other  parties. 
The  presumption,  therefore,  is,  in  the  absence  of  atiy  finding  to 
the  contrary,  not  only  that  the  defendant  consented  to  the  making 
of  the  improvement  by  the  city,  but  that  there  was  an  i7nplied  un- 
derstanding that  the  defendant  7vas  to  bear  its  fair  proportion  of 
the  expense.  We  think,  therefore,  that  the  defendant  should  be 
estopped  from  setting  up  this  claim." 

In  Stevens  vs.  Franklin  County,  48  Mo.,  167, 
176,  an  action  to  restrain  the  collection  of  an  as- 
sessment for  the  payment  of  bonds  issued  by  the 
defendant  to  enable  the  improvement  of  a  certain 
road,  and  to  restrain  the  payment  of  such  bonds, 
the  plaintiff  was  held  estopped  by  his  acquiescence 
in  the  improvement  to  question  the  regularity  of 
the  proceedings. 

The  Court  said  : 

"  The  application  on  the  part  of  the  appellants  would  have 
come  with  a  better  grace  and  with  more  persuasive  equity,  had 
they  filed  their  bill  at  the  commencement  of  the  work,  and  not 
waited  till  its  completion  before  they  moved  in  the  matter. 


2  I 


They  were  citizens  of  the  county,  they  knew  of  the  contract, 
they  saw  the  heavy  expenditures  that  were  being  made,  and  the 
amount  of  improvement  as  it  was  executed ;  and  still  the  pro- 
ceeding was  not  instituted  till  the  work  was  completed,  and  the 
bonds  in  payment  were  issued  and  nearly  all  negotiated." 

Skinner  vs.  Hartford  Bridge  Co.,  29  Conn. 
523.  535,  was  an  action  to  recover  damages  for 
the  raising  of  a  causeway.  The  Legislature  had 
authorized  the  defendant  to  build  the  causeway  in 
question  through  certain  meadows,  and  provided 
for  a  committee  to  assess  the  damages  resulting 
therefrom  to  the  land  proprietors.  The  assess- 
ment was  made  and  the  damages  paid  to  the  pro- 
prietors, among  others,  the  plaintiff.  The  action 
was  not  brought  till  many  years  thereafter,  during 
which  time  the  causeway  had  been  treated  and 
used  by  the  public,  without  objection,  as  a  public 
highway. 

Said  the  Court  : 

"  We  think  it  now  (juite  too  late,  if  it  ever  could  have  been 
done,  to  call  in  question  the  legality  of  the  laying  out  of  the 
causeway,  upon  the  ground  that  the  act  providing  for  the  assess- 
ment of  damages  which  was  essential  to  the  legality  of  the  pro- 
ceeding, had  not  taken  effect  by  the  rising  of  the  General  As- 
sembly at  the  time  when  the  assessment  was  made.  *  *  * 
The  damages,  whether  legally,  assessed  or  not,  were  in  fact  as- 
sessed in  favor  of  the  jjlaintiff's  grantor,  and  were  accepted  by 
him  as  damages  for  the  land  taken  ;  and  the  causeway  thus  laid 
out  and  paid  for  has  been  ever  since  treated  and  held,  without 
objection  from  any  quarter,  as  a  i)ubli(:  highway.  In  these  cir- 
cumstances the  jilaintiff  is  clearly  esloi^ped  from  calling  in 
question  the  validity  of  the  proceedings  under  which  the  cause- 
way was  laid   out   and   the  damages  assessed   and  paid.     The 


22 

doctrine  of  estoppel  has  often  been  before  the  Court,  and  has 
been  applied  by  us  in  cases  presenting  defects  and  irregularities 
more  serious  and  questionable  than  any  suggested  in  this  case." 

New  Haven  vs.  Toivn  of  CJiatham,  42  Conn., 
465,  was  an  application  for  a  mandamus  to  compel 
a  town  to  guarantee  certain  bonds  which  had  been 
executed  by  the  plaintiff  railroad  company,  and 
which  it  (said  town)  passed  a  vote  to  guarantee  on 
the  completion  of  the  road.  The  town  defended 
on  the  ground  that  the  vote  was  not  regularly 
passed.  The  vote  had  in  fact  taken  place  by  di- 
vision of  the  house,  and  not  by  ballot,  as  required 
by  law,  but  neither  the  officers  nor  the  inhabitants 
of  the  town  gave  any  notice  that  it  was  not  taken 
by  ballot  until  more  than  three  years  thereafter, 
and  until  long  after  the  railroad  company  had  in 
good  faith,  and  with  the  knowledge  of  the  inhabit- 
ants, issued  the  bonds  that  were  to  be  guaranteed 
and  delivered  them  to  the  contractors,  who  had 
performed  the  work,  furnished  materials  and  ex- 
pended money  in  reliance  upon  them.  Held: 
The  town  and  its  inhabitants  were  estopped  from 
setting  up  the  invalidity  in  the  vote. 

The  Court,  at  pp.  478  and  479,  said  : 

"  Its  (the  town's)  officers  and  inhabitants  knew  that  the  com- 
pany and  the  contractors  under  it,  relying  upon  the  vote  of  the 
town,  and  upon  the  record  thereof,  as  evidence  that  it  was  legally 
passed,  were  expending  large  sums  of  money  and  incurring 
obligations  in  completing  the  road,  and  adding  substantial  value 
to  the  property  in  which  the  town  had  made  large  previous  in- 


23 

vestments,  and  that  the  work  of  construction  was  carried  or 
wholly  upon  this  pledged  assistance  from  Chatham  and  other 
towns  in  like  situation.  When  asked,  from  time  to  time,  to 
place  the  guaranty  upon  the  bonds  by  the  coriipany,  and  by  the 
contractors,  whom  they  had  seen  expending  money  and  perform- 
ing labor  upon  the  faith  of  their  record,  they  received  the  re- 
quest in  silence  or  refused  comi>liance  for  varying  reasons,  but 
no  officer  or  individtial  citize?i  ever  gave  any  notice  or  even  inti- 
mation to  the  company  or  any  person  that  there  was  any  defect  or 
informality  in  tJie  manner  of  passing  the  vote,  or  any  error  in 
t/ie  record  t/iereof  until  ilte  road  had  been  completed  and  they  had 
derived  all  possible  benefits  from  silence. 

"And  the  town  having  made  the  record  for  the  express  pur- 
pose and  with  the  design  hereinbefore  indicated,  its  officers  and 
inhabitants  all  having  knowledge  that  the  company  and  the  con- 
tractors did  in  fact  understand  it  as  importing  a  vote  by  ballot, 
and  upon  such  understanding  were  expending  money  and  labor, 
in  increasing  the  value  of  the  property  of  the  town,  having  re- 
frained for  more  than  three  years  from  any  effort  to  correct  what 
they  now  insist  is  an  erroneous  record,  and  having  during  the 
same  time  neglected  to  give  any  notice  of  a  defect  in  the  manner 
of  taking  the  vote,  knowing  that  such  notice  would  stop  such 
expenditure,  they  are  now,  upon  the  plainest  principles  of  law, 
estopped,  both  as  a  mimicipal  corporation  and  as  individuals,  from 
setting  up  against  the  company,  which  still  has  an  interest  in  the 
bonds  thus  delivered  to  the  contractors,  and   is  now  seeking  to 
secure  the  guaranty  which  it  agreed  they  should  have,  or  against 
the  contractors,  any  defect  in  the  mode  of  exercising  the  i)o\ver 
conferred   upon   t'lem   by  the    Legislature,  and   from  altering  a 
record  made  by  themselves  and  allowed  to  stand  for  ttiree  years, 
by  which,  with  their  knowledge,  the  company  and  the  contract- 
ors were  induced  to  believe  in  the  existence  of  a  certain  slate  of 
things,  and  so  act  on  that  belief  as  to  alter  respect ivt.-ly   their 
previous  positions. 

"  Indeed,  the  votes,  the  record,  and  the  subsequent  conduct 
of  the  town  and  its  inhabitants  in  reference  thereto,  considered 
in  relation  to  the  bonds,  subject  them  to  the  operation  of  the 
law  of  estoppel  as  completely  as  if  the  town  had  become  the 
makers  of  the  bond,  and  had  declared  in  it  that  it  had  com])lied 


24 

with  all  the  rctjuirementsof  the  law  in  issuing  it  and  had  allowed 
it  to  pass  into  the  hands  of  an  innocent  holder.  When  the 
Legislative  grant  of  ix)wer  to  the  town  to  bind  itself,  and  a 
declaration  of  this  character  concerning  the  manner  of  exercis- 
ing it,  co-exist,  Courts  apply  the  principles  of  estoppel  as  strictly 
and  with  as  much  reason  to  municipalities  and  their  inhabitants 
as  to  individuals." 

In  Society  for  Savings  vs.  Neiv  London,  29 
Conn..  174,  191,  ei  seq.,  an  action  to  recover  in- 
terest on  certain  city  bonds,  issued  to  aid  in  the 
construction  of  a  railroad,  and  the  payment  of 
which  was  resisted  by  the  city,  on  the  ground  of 
irregularities  and  the  want  of  authority  in  their 
issuance,  the  Court  said: 

"The  proceedings  of  the  city  in  issuing  the  bonds  were  well 
known  to  all  the  citizens.  We  must  consider  them  as  convers- 
ant with  the  votes  of  April  14th  and  July  31st,  and  everything 
that  was  done  under  the  votes;  the  issuing  of  the  bonds  in  the 
name  of  the  city;  the  delivery  of  them  to  New  London,  Willi- 
mantic  and  Palmer  Railroad  Company  for  their  use;  the  adver- 
tisement of  them  in  the  public  papers,  and  the  fact  that  they 
were  bought  by  honest  purchasers,  from  time  to  time,  for  the 
ultimate  benefit  of  the  citizens  themselves.  They  knew,  too, 
that  the  bonds  were  taken  by  the  Treasurer  of  the  State  as  se- 
curities for  the  issue  of  bank  paper.  If  all  this  was  wiihout 
authority,  why,  we  ask,  did  not  the  citizens  then  make 
their  objections  ?  Why  did  they  not  enjoin  the  city  agents  from 
further  proceedings  1  At  least,  why  did  they  not  give  notice 
to  the  public,  and  put  purchasers  on  their  guard,  when  they 
knew  that  a  grievous  loss  must  ensue  if  the  bonds  were  unau- 
thorized! We  must  believe  that,  aft^r  such  acquiescence,  it 
would  be  an  outrage  upon  morality  and  justice  and  an  im- 
peachment of  the  integrity  of  the  citizens  of  New  London  to 
allow  the  city  to  repudiate  its  obligations  for  such  a  cause. 
Many  of  the  citizens,  we  well  know,  disapprove  of  and  con- 
demn such  a  repudiation ;  and  we  trust  all  of  them  would  do  so 


25 

were  it  a  simple  transaction  between  man  and  man,  where  the 
culpability  could  not  be  thrown  off  upon  a  municipal  corpora- 
tion. But  it  is  this  very  circumstance  which  enhances  the  im- 
propriety of  the  act  of  repudiation;  for  the  integrity  of  a  public 
body  is  its  principal  virtue.  To  violate  or  impair  this  is  to 
undermine  government  itself,  and  to  destroy  the  very  institu- 
tions of  the  civil  State.  Such  repudiation  cannot  receive  the 
countenance  of  this  Court  of  justice.  Hitherto  repudiation  has 
not  anywhere  been  countenanced  among  us,  and  we  trust  it 
would  not  have  received  favor  in  this  instance  with  any  of  the 
citizens  of  New  London  had  they  carefully  considered  the  con- 
equences  of  the  act,  and  the  precedent  they  were  establishing 
for  other  and  less  favored  communities.  The  general  doctrine 
of  equitable  estoppel,  especially  as  to  taxpayers,  is  most  ably  dis- 
cussed and  approved  in  the  cases  of  The  State  vs.  Van  Home, 
7  Ohio  St.  327;  Knox  County  Commissioners  vs.  Aspinwall, 
21  Howard,  539;  Task  vs.  Adams,  10  Cush.,  252;  Graham  vs. 
Maddox,  6  Am.  Law  Reg.,  595,  6i8,  and  Gould  vs,  Venice,  29 
Barb.,  442. 

"  Perhaps  no  one  thing  has  done  more  to  disparage  the  fair 
fame  of  our  country  abroad,  or  to  impair  the  integrity  of  our 
institutions  at  home,  than  the  loose  sentiments  which  prevail  in 
some  parts  of  the  land  as  to  public  and  corporate  indebtedness. 
It  seems  to  be  thought  by  some  people  that  as  to  obligations  of 
this  character,  nothing  more  is  called  for  from  the  debtor  than 
what  is  agreeable,  easy  and  convenient.  Honor,  honesty  and 
punctuality  are  thought  to  be  (juite  foreign  to  the  subject.  But 
this  is  a  very  great  mistake,  false  and  ruinous  in  the  extreme. 
These  virtues  are  as  essential  to  public  bodies  as  to  individuals, 
and  the  nation.  State,  City  or  inuniripality  that  does  not  observe 
and  cherish  them  has  u|)(in  it  a  blight,  which  will,  in  the  end, 
destroy  its  best  interests. 

"It  was  said  on  the  argument  that,  however  proper  it  might 
be  to  compel  the  City  of  New  London  to  fuHill  her  engage- 
ments, if  the  city  as  such  was  alone  affected,  yet  that  individual 
citizens,  taxpayers,  have  rights  of  their  own,  which  they  may 
defend  in  the  name  of  the  corporate  l)ody.  But  we  can  recog- 
nize no  such  indei)cndent  character  in  the  citi/.cn.  Besides,  the 
city  alone  appears  here  to  defend ;  and  if  the  individual  citizens 


26 

were  to  be  considered  as  appearing  for  themselves,  they  could 
only  defend  in  the  name  and  according  to  the  rights  of  the  city." 

If  the  Court  desires,  it  may  consult  the  following 
additional  authorities  in  this  connection  : 

Stasser  vs.  Fort  Mayne,  lOO  Ind.,  443. 
Ricketts  vs.  Spraker,  yy  Ind.,  371,  381. 
Baltiuiore  vs.  Strauss,  37  Md.,  i^^J,  243. 
Whittlesey  vs.  The  Hartford  R.  R.    Co.,    23 

Conn.  421,  432  et  seq. 
Hitchcock  vs.  Danbiuy,  25  Conn.,  515. 
Erie  Ry  Co.  vs.  Delaivare  &c.  Co.,  21   N.  J. 

Eq.,  283,  289. 
Mahaska  vs.  Des  Moines,  28  Iowa,  437,  454. 
Goodiii   vs.    Cincinnati,     18   Ohio,    St.    169^ 

180. 
Motz  vs.  City  of  Detroit,  18  Mich.  495,  528. 
City   of  Burlington  vs.    Gilbert,     31    Iowa, 

356,  365- 
Commonwealth  vs.    City     of    Pittsburg,    45 

Pa  St.,  391. 
Bidwellv?,.  City  of  Pittsburg,  85  Pa.  St.,  412. 
Tash  vs.  Adams,  10  Cush.,  252. 
Matter  of  Application  of  Cooper,  93    N.  Y., 

507- 
Daniels  vs.  Tearney,    102   U.  S.,  415,  420. 
Matter  of  Application^  of  Woolsey,  95   N. 

Y.,  144. 
City  of  Lafayette  vs.  Fowler,    34   Ind.,    140^ 

146. 


27 

Hellcnkaijtp  vs.  City  of  Lafayette,  30  Ind., 
182,  194. 
The  principles  enunciated  in  these  cases  are  the 
dictates  of  common  honesty,  the  offsprings  of  ele- 
mentary justice.  They  are  not  of  to-day,  but  of 
all  time;  not  of  this  country,  but  of  all  countries. 
They  have  been  proclaimed  by  judges  in  all  ages 
and  in  all  climes,  and  still  flourish  wherever  trickery 
is  discountenanced  and  dishonesty  condemned. 
The  Legislature  foresaw  that  these  fundamental 
rules  of  jurisprudence  might  be  ignored  ;  they  an- 
ticipated that,  upon  the  line  of  this  street  there 
might  be  men,  of  such  elastic  consciences  as  to  be 
willing  to  permit  this  great  public  improvement, 
by  which  their  property  was  to  be  vastly  en- 
hanced in  value,  to  proceed,  through  all  its  stages 
to  completion,  and  then,  when  the  benefits  had 
been  fully  and  irrevocably  conferred,  to  attempt  to 
evade  the  payment  of  the  debt  contracted  on  their 
behalf;  they  apprehended  that  there  might  be 
men  so  lost  to  all  sense  of  shame  as  to  be  willing 
to  convey  their  property  to  the  municipality,  to  re- 
ceive- in  payment  money  raised  by  a  sale  of  the 
City's  bonds,  and  then,  when  assessed  to  pay  these 
obligations,  incurred  in  their  behalf,  while  still  re- 
taining the  money  paid  tliein  .and  the  benefits  con- 
ferred, to  repudiate  the  validity  and  obligation  of 
the  bonds.  The  Legislature  foresaw  all  this,  and 
to  prevent  the    accomplishment — in    the  hope  of 


28 

forestalling  even  the  attempt— of  such  nefarious  pro- 
ceedings, it  transferred  to  the  Statute  the  rule  that 
the  completion  of  the  work  should  estop  all  parties 
anywhere  and  everywhere,  in  law  as  well  as  equity, 
from  denying  the  legality  of  the  burdens  imposed 
by  the  Act. 

What  is  the  meaning  of  this  provision?  Plainly 
this  :  The  law  says  to  the  property  owners : 
Here  is  a  public  Statute,  of  which  you  all  take  no- 
tice, and  whose  provisions  are  known  to  you;  under 
it  a  great  public  improvement  for  the  benefit  of 
your  property  is  about  to  be  inaugurated  ;  it  is 
contemplated  and  provided  that  the  cost  of  this 
improvement  shall  be  borne  by  the  parties  who 
reap  its  advantages ;  various  steps  are  to  be  taken 
before  the  improvement  is  completed ;  the  Westerly 
line  of  a  whole  street  is  to  be  changed,  and  rows 
of  buildings  for  several  blocks  to  be  torn  down 
these  things  will  go  on  at  your  own  doors  and 
under  your  own  eyes  ;  the  proceedings  are  com- 
plicated and,  through  carelessness  of  officials,  may 
be  attended  with  some  irregularities  ;  if  you  wish 
to  take  advantage  of  these  irregularities,  do  so 
while  the  proceedings  are  going  on  ;  but,  if  you 
permit  them  to  go  on  without  complaint,  if  you  al- 
low them  without  objection  to  reach  completion, 
you  shall  be  deemed  to  acquiesce  in  the  provisions 
of  the  Act  and  the  regularity  of  the  proceedings 
had  under  it ;  and,    having    voluntarily    seen    the 


29 

benefits  of  the  law  conferred  upon  your  property, 
you  shall  be    held  to  have  assented  to  its  burdens. 

Is  there  anything"  to  prevent  the  Legislature 
from  declaring"  by  Statute  this  rule  of  estoppel  ? 
Nothinof  that  I  can  imacjine.  Courts  declare  what 
acts  estop  parties  from  questioning  certain  things 
done  with  their  acquiescence.  Why  may  not  the 
Legislature  declare  the  same,  and,  by  public  Stat- 
ute, warn  and  inform  parties  that  their  tacit  ac- 
quiescence in  certain  proceedings,  their  failure  to 
challenge  or  oppose  them  while  they  are  in  fieri 
under  their  own  eyes,  will  estop  them  from  ques- 
tioning them  when  they  have  reached  completion  ? 
Why  may  not  the  Legislafture  make  it  known  to 
parties  that,  if  they  voluntarily  accept  the  benefits 
conferred  upon  them  by  a  Statute,  they  shall  not 
be  permitted  to  avoid  the  corresponding  burdens  ? 

This  provision  of  the  Statute  is  in  consonance 
with  the  numerous  decisions  which  I  have  cited 
upon  the  question  of  estoppel.  It  is  eminently 
just.  1 1  ought  to  be  enforced,  unless  it  contravenes 
some  pro^'ision  of  the  Constitution  ;  and,  there  is 
no  constitutional  provision  oppfjsed  to  it. 

Precisely  similar  statutory  estoppels  have  been 
recognized  and  enforced  by  the  C(^urts.     Iluis  : 

In  /^alincr  v^.  Stiunph,  29  Ind.,  329,  the  Stat- 
ute under  consideration,  (the  Indiana  Act  (or  the 
incor[>(jration  of  Cities)  provided,  that  the  Common 
Council  might,  upon  [jetition  of  two-thirds  of  the 


30 

abutting  owners,  cause  improvements  to  be  made 
in  streets,  by  executing  contracts  therefor  to  the 
lowest  bidder,  after  advertising  for  proposals,  and 
that  the  contractor  should  be  paid  at  the  com- 
pletion or  during  the  prosecution  of  the  work  by 
assessments  to  the  levied  on  the  owners  benefited. 
The  6Sth  section  providers  for  the  collection  of  the 
assessment  through  the  agency  of  a  precept  issued 
for  that  purpose,  and  further  makes  provision  for 
an  appeal  from  the  precept  to  the  Court  of  Com- 
mon Pleas,  declaring  however,  that  "  no  question 
or  act  shall  be  tried  which  may  arise  prior  to  the 
making  of  the  contract  for  said  improvement." 
The  Court  commenting  on  this  Act,  said  : 

"  The  plain  intent  of  all  the  Statute  is  to  prevent  the  owner  of 
property  to  be  benefited  by  a  conteviplated  improvement  made  by 
the  Common  Council  of  the  street  in  front  of  his  property  from 
remaining  silent  until  he  has  secured  the  full  benefit  of  the  worky 
and  then  avoiding  the  payment  therefor.  If  he  denies  the  power 
of  the  Council  to  order  the  improvement,  he  must  test  the  question 
by  injunction  before  the  work  is  done.     Acquiescence  in  the 

ACTION  OF  THE  CoUNCIL    IS    BY  LAW  MADE  TO  ESTOP  HIM  FROM 
GOINO  BEHIND  THE  MAKlkO  OF  THE  CONTRACT." 

The  same  statute  came  under  consideration  in 
Commissio?iers  of  Allen  County  vs.  Siluej^s,  22 
Ind.,  491,  where  it  was  objected  on  appeal,  that  it 
no  where  appeared  in  the  record,  that  two-thirds 
of  the  resident  lot-owners  had  petitioned  the 
council  for  the  improvement.  Said  the  Court  at 
page  499 : 

"  These  are  questions  which  the  Court  below  could  not  in- 
quire into.     We  have  seen  that  on  the  appeal  no  questions  of  fact 


31 

could  be  tried  which  arose  before  the  making  of  the  contract_ 
This  provision  of  the  statute  was  inserted  for  a  purpose.  That 
purpose  was  undoubtedly  to  enable  the  contractor  to  collect  his 
money  when  he  had  done  the  work  contracted  for,  without  being 
harassed  with  questions  as  to  the  regularity  of  the  proceedings 
that  took  place  before  he  etitered  into  the  contract^  and  to  which 
proceedings  he  might  be  a  stranger.  If  a  party  interested  have 
reason  to  believe  the  proceedings,  before  the  contract,  were  ir- 
regular or  insufficient  to  authorize  the  contract  and  the  doing  of 
the  work,  he  may  enjoin  them  before  the  work  is  done ;  but  // 
he  withholds  his  objection  until  the  work  is  done  there  is  no  hard- 
ship in  precluding  him  from  going  behifid  the  contract  and  show- 
ing that  by  reason  of  any  fact  it  was  unauthorized,  *  *  * 
whether  the  petition  was  signed  by  the  requisite  number  of 
residents  of  the  city,  oivning  property  borderifig  on  the  street  on 
which  the  improvement  was  to  be  made,  was  a  fact  that  could 
not  be  inquired  into.''' 

The  provisions  of  this  same  statute,  were  like- 
wise given  effect,  and  thus  its  vaHdity  recognized, 
in  City  of  Indianapolis  vs.  Imberry,  17  Ind.,  175. 

It  is  humbly  submitted  that  the  principles  of 
these  decisions  and  the  express  language  of  the 
statute  dispose  of  the  plaintiff's  contention,  and 
that  the  plaintiff's  case  ends  right  here. 

Secondly. — If  it  should  be  held  tliat  this  view 
of  the  stalut('  is  incorn^ct,  still,  I  maintain  that, 
unless  this  Court  is  prepared  to  overrule  one 
of  its  former  decisions,  uj)()n  all  objections  urged 
here  against  th(i  legality  of  the  proceedings 
had  inuh-r  the  Dupont  Street  Act  all  dis- 
cussion is  foreclosed,  and  every  point  is  set 
at  rest,  upon  authority  in  this  State,  and  squarely 
decided    against  the    plaintiff's  contention   by  the 


o- 


case  of  Sajt  Francisco  vs.  Certain  Real  Estate, 
42    Cal,   512. 

This  case  is  of  such  importance  that  a  some- 
what extended  examination  of  it  is  warranted. 

By  statute  of  March  30th,  1886,  [  Stat.  1867-8, 
p.  549,]  commonly  known  as  the  Second  Street 
Cut  Act,  it  was  provided  as  follows  : 

§  I.  The  Board  of  Supervisors  are  authorized  to  modify  the 
grade  of  Second  Street 

§  4.  The  expense  of  the  work  is  to  be  defrayed  by  assessment 
upon  the  owners  of  lands  "that  may  be  benefited." 

§  4.      The  district  benefited  is  defined  and  described. 

%  8.  The  Board  of  Supervisoors  "appoint  three  disinterested 
citizens  *  *  *  as  Commissioners  to  assess  the  bene" 
fits  and  damages  to  each  separate  lot  of  land  within  the  limits  of 
the  district." 

§  II.  The  Commissioners  assess  the  damages  upon  the  lands 
benefited  "  as  near  as  may  be  in  proportion  to  the  benefit,  which 
shall  be  deemed  to  accrue  to  each  lot  respectively," 

By  statute  of  February  r,  1870  [Stat.  1869-70. 

p.  41],  amendatory  of  the  foregoing,  it  is  provided 

as  follows  : 

§  12.  The  Commissioners  file  their  report  in  the  office  of 
the  Clerk  of  the  County  Court. 

"  The  Clerk  of  said  Coimty  Court,  as  soon  as  said  report 
shall  be  filed  .'n  his  office,  shall  give  notice  of  such  filing  by 
publishing  a  notice  thereof  in  the  official  newspaper  of  said  Board 
of  Supervisors  for  a  period  of  five  days." 

§13.  "-Within  twenty  days  after  the  publication  of  said  Icist 
mentioned  fwtice,  any  interested  party  or  parties  dissatisfied  with 
the  report  of  said  Commissioners,  or  any  part  thereof  may  file 
with  the  Clerk  of  the  County  Court  of  said  City  and  County, 
written  objections  to  sail  report,  or  any  part  thereof,  setting 
forth  his  or  their  grounds  of  objection." 

If  no  such  objection  is  made  the  report  becomes  final. 


In  case  of  objections,  the  County  Court  "shall  assign  a  day 
for  the  hearing  and  trial  of  said  objections,  and,  on  the  day  as- 
signed *  *  *  said  Court  shall  hear  the  allegation  of  the 
party  or  parties  so  objecting,  and  shall  take  proof  in  support  of 
and  against  said  objections,  and  of  said  report  and  the  assess- 
ment therein,  and  shall  confirm  said  report,  or  may  modify  the 
same,  or  may  set  the  same  aside,  either  in  whole  or  in  part,  or, 
in  its  discretion,  may  refer  the  matter  back  to  the  same  Com- 
missioners with  instructions,  who  shall  thereupon  proceed  as 
hereinbefore  provided,  or  according  to  said  instructions." 

Upon  coming  in  of  the  second  report  the  same  proceedings 
are  gone  through  with. 

After  iudo-ment  of  the  Countv  Court  confirmine 
the  report,  this  action  was  brought  to  recov^er  an 
assessment.  An  examination  of  the  briefs  on  file 
will  show  that  the  points  of  appellant  were  sub- 
stantially the  same  as  those  of  the  plaintiffs  here. 
In  overrulino-  them  the  Court  said  [pp.  519,  520]: 

"  The  amendatory  act  of  February  first  provides  that  the  re- 
port shall  be  returned  into  the  County  Court,  of  which  fact 
notice  was  to  be  given  by  pu!)lication,  after  which  a  reasonable 
time  is  allowed  by  the  act  within  which  all  persons  interested 
were  permitted  to  file  objections  to  the  report,  and  to  call  wit- 
nesses in  support  thereof  A  sufficient  opportunity,  after  due 
notice,  was  thus  afforded  to  all  persons  to  attack  the  report  and 
the  proceedings  of  the  Commissioners  for  irregularity,  or  for  any 
other  just  cause  ;  and  after  hearing  all  the  proofs  and  allegations 
of  the  parties,  it  was  made  the  duty  of  the  Court  to  modify  or 
confirm  the  reiKjrl.  In  case  the  report  was  set  aside  and  a  new 
report  was  ordered  to  be  made,  a  like  opjiortunity  was  afforded 
for  filing  objections  thereto  and  calling  witnesses  in  support  of 
them,  .\fter  hearing  the  objections  to  the  second  report,  it  was 
made  the  duty  of  the  Court  to  render  a  judgment,  either  con- 
firming or  setting  aside  the  report ;  and  the  statute  declares  that 
this  judgment  'shall  be  final  and  conclusive.'  In  the  case  of 
Houghton's  appeal  from  this  judgment,  decided  at  the  last  term, 
we  held  the  judgment  to  be  final  and  conclusive  in  such  a  sense 


34 

that  no  appeal  would  lie  iherefrom.  It  was  olniously  the  inten- 
tion of  the  Legislature  that  all  objections  to  the  report,  founded 
upon  the  errors,  misconduct,  irregularities,  or  omissions  of  the 
Commissioners,  should  be  heard  and  determined  by  the  County 
Court,  and  should  not  thereafter  be  open  to  attack  in  a  collateral 
action.  The  parties  in  interest  were  allowed  their  day  in  Court, 
after  due  notice,  with  a  sutficient  opportunity  to  be  heard  in  their 
defense,  and  the  proceeding  would  be  interminable  if  the  report 
could  be  collaterally  attacked  after  a  final  judgment  in  the 
County  Court.  This  is  precisely  what  is  attempted  to  be  done 
by  the  defense  in  this  action.  To  permit  such  a  defense  would 
be  to  disregard  the  manifest  intention  of  the  statute,  and  to 
nullify  some  of  its  provisions.  The  answer,  in  my  opinion,  pre- 
sented no  defense  to  the  action." 

This   case,  then,  decides  these  essential  points  : 

ist.  It  is  not  necessary  that  the  property-owners 
should  hav^e  a  hearing  before  the  Commissioners 
in  the  first  instance  ;  it  is  sufficient  if  they  are 
afforded  a  hearing  before  the  assessment  becomes 
final — by  this  they  are  "allowed  their  day  in 
Court." 

2d.  It  is  not  necessary  that  notice  of  the  hear- 
ing should  be  given  to  the  parties  in  interest  per- 
sonally ;  it  is  sufficient  that  notice  by  publication 
be  given — this  is  "due  notice," 

3d.  A  notice  that  the  report  is  filed  is  sufficient ; 
It  is  not  necessary  that  the  notice  should  contain 
anything  more  than  this  bare  statement. 

4th.  A  publication  of  such  notice  for  five  days 
in  one  single  newspaper,  is   sufficient    publication, 

5th.  Allowing  twenty  days  after  such  publica- 
tion within  which  to  make  objections  to  the  report 
is  the  allowance  of  a  sufficient  length  of  time. 


6th.  The  right  given  by  the  statute  to 
"  make  objections  to  such  report,  or  any  part  there- 
of,''  is  a  right  "' to  attack  the  report  and  the  pro- 
ceedings of  the  Commissioners  for  irregularity,  or 
for  any  other  jiist  cause!' 

7th.      Whatever  the  nature  of  the  objection,  no 

.  further  notice  of  the    proceeding    need    be   given 

than  the  five  days  pubHcation  above  mentioned, — 

by  this  notice   "  opportunity     ''"      "      *     zaas  thus 

afforded  to  all  persons  to  attack  the  report." 

8th.  ''All  objections  to  the  report,  founded  upon 
the  error,  misconduct,  irregularities,  or  omissions 
of  the  Commissioners''  must  '' be  had  and  deter- 
miited  by  the  County  Court,"  and  can  ''not  there- 
after be  open  to  attack  in  a  collateral  action." 

9th.  The  judgment  of  the  County  Court  con- 
clusively establishes  the  legality  and  validity  of 
the  report — which  thenceforth  cannot  be  "  collat- 
erally attacked." 

lOth.  To  permit  such  a  collateral  attack  to  be 
made  "  luould  be  to  disregard  the  mauij'cst  inten- 
tion of  the  statute  and  to  nullify  some  of  its  pro- 
visiofis." 

This  decision  is  on  all  fours  with  the  [)resent  case, 
upon  the  essential  points  relied  on  by  the  plaintiffs 
here.  It  had  stood  u[)on  the  reports  of  this  Court 
unchallenged  and  unquestioned  for  years,  at  the 
time  the  Dupont  Street  Act  was  passed.  It  stands 
there  to  this  day.      Relying  \.\\iO\\   that  solenui  ad- 


36 

judication  in  a  parallel  case,  a  large  number  of  per- 
sons have  purchased  the  bonds  issued  to  defray 
the  expense  of  a  great  public  improvement  in  the 
City  of  San  Francisco.  Taught  by  the  doctrine  of 
that  case,  they  had  learnt  that  the  judgment  of  the 
County  Court  was  a  conclusive  adjudication  of  the 
regularity  and  legality  on  the  proceedings  taken 
under  the  Statute.  They  had  been  led  to  believe 
that  that  judgment  was  a  shield  against  the 
numerous  small  and  vermiculate  attacks  which  .are 
now  made  upon  the  proceedings.  They  still  abide 
in  the  conviction  that  this  Court  will  not  push 
aside  that  shield,  and,  by  overruling  its  own  decis- 
ion, destroy  the  investments  which  parties,  in  their 
confidence  in  the  stability  of  the  jurisprudence  of 
the  State,  have  made  in  these  securities.  The  de- 
cision, as  to  them,  has  acquired  all  the  dignity  and 
sacredness  of  a  rule  of  property.  As  such,  even 
though  doubts  of  its  correctness  should  be  enter- 
tained— ^and  none  have  yet  been  suggested — it 
should  not  be  shaken  now. 


37 

I. 

The  Dupont  Street  Act    is    Free    from    any 

Constitutional    Objection   urged  against 
IT  BY  THE  Plaintiff. 

I  shall  contend  that  the  Statute,  even  under 
the  most  rigorous  construction,  is  not  obnoxious 
to  criticism.  But,  if  the  act  needs  a  more  benign 
interpretation,  it  may  safely  be  expected  that  the 
Court  will  net  refuse  it,  in  examining  the  action 
of  a  co-ordinate  branch  of  the  government. 

It  is  the  duty  of  the  Court  "  to  adopt  that  con- 
struction which,  without  doing  violence  to  the  fair 
meaning-  of  the  words  used,  bringfs  the  Statute  in 
harmony  with  the  provisions  of  the  constitution  ; 
the  presumption  must  be  that  the  Legislature  in- 
tended to  grant  such  rights  as  were  legitimately 
within  its  power."' 

I.     The  Act  does    not  Fall   within  the 

ixniiiiTioN     OF     the     Doctrine     of 

People     vs.      Lynch. 

The  doctrine  of  that  case  prohibits  the  Legis- 
lature from  entering,  as  a  forcible  intruder,  into 
the  municiijalit)-,  to  usLir[>  its  (jrdiiiar)'  hiiiclions. 
"  Such  a  law  "  says  th(."  Court,  "  is  unconstlluiional, 
because  it  *  *  *  deprives  the  l)()ard  of 
Trustees  or  legislative  department  of  the  city 
government  *  *  "'''  of  all  choice  or  discre- 
tion  in  reference  to  the  imi^rovement." 

'  (iranada  County  i'.f.  Broydon,  II2  U.  S.,   269. 

.'50(5412 


38 

But,  the  Dupont  Street  Act  is  the  exact  reverse 
of  this.  It  leaves  it  entirely  within  the  power  of 
the  legislative  department  of  the  city  to  exercise 
its  own  choice  or  discretion.  Far  from  stepping" 
within  the  bounds  of  the  municipality  as  an  in- 
truder, the  Legislature  does  not  enter  at  all,  until 
the  Board  of  Supervisors  voluntarily  unbars  the 
gates. 

Surely  the  Legislature  could  have  amended  the 
charter  of  the  city,  by  inserting  therein  a  provision 
that,  whenever  the  Board  of  Supervisors  should 
deem  it  expedient  to  widen  a  street,  and  should 
adopt  a  resolution  to  that  effect,  the  Mayor,. 
Auditor  and  Surveyor  should  constitute  a  board 
for  the  purpose  of  making  the  proposed  changes,, 
and  should  proceed  to  discharge  functions  similiar 
to  those  imposed  upon  them  by  the  present  Act. 
The  statute  before  us  is,  in  reality,  but  an  amend- 
ment to  the  charter  of  the  city. 

The  distinction  between  the  present  statute  and 
that  under  consideration  in  People  vs.  Lynch  is  toa 
obvious  to  need  further  comment 

Since  the  late  decision  of  this  Court  in  People 
vs.  Bartlett,  6  W.  C.  R.,  765,  this  question  is  no< 
longer  an  open  one  in  this  State. 

II.     The   Statute  does   not  Violate  the 
Constitutional  Right   of  a  Person   to  notice 
OF    Proceedings   which    Affect  his  Property, 

It  is  contended  that  the  parties  in  interest  had  a 


39 

constitutional  right  to  notice  and  opportunity  to  be 
heard  upon  the  assessment  of  damages  and  bene- 
fits ;  and  it  is  claimed  that  the  notice   of  the  hear- 
ing was,  in  several   particulars,  radically  defective^ 
I.      It  is  said  that  no  notice  is  given  to  the  parties 
to    appear    before   the    Commissioners  while  they 
are    making  the  roll,  and  before  they  have  com- 
pleted their  labors ;  that  the  only  notice  provided 
for,  Is  one  given  after  the  roll  is  completed  by  the 
Commissioners^  and  that  the  parties  had  a  consti- 
tutional right  to  notice  and  opportunity  for  a  hear- 
ing by  the  Commissioners  before  they  completed 
their  labors. 

To  this  I  answer  : 

The  parties  had  no  constitutional  right  to  notice 
and  a  hearing  before  the  Commissioners.  It  is 
sufficient  if  they  have  due  notice  and  opportunity 
to  be  heard  before  some  tribunal  competent  to  af- 
ford them  relief  at  any  time  before  the  proceedings 
become  final  against  them. 

This  proposition  is  universally  recognized,  and  is 
fully  established  by  the  following  authorities  : 

Reclamation  District  vs.  Evans,  6i  Cal.,  104, 
That  was  an  action  to  recover  an  assessment  on 
certain  lands  for  reclamation  purposes.  It  was 
urged  that  the  [provisions  of  th<'  Political  Code  re- 
latine  to  such  assessments  were  unconstitutional, 
as  they  did  not  provide  for  any  mode  by  which  a 
party  assessed  should  have  notice  of  the  proceed- 


40 

ing  against  him  and  an  opportunity  to  object  to 
the  amount  charged  upon  his  land. 

The  Court  said  :  "  No  assessment  against  any  tract  of  land 
can  be  enforced  except  by  action,  to  which  the  owner  of  the 
tract   must   be  made  a  party.  *         *         *         It   cannot 

be  material,  *  *         *  ^hat  the  landowner  had  no 

notice  before  the  proportional  benefit  to  his  land  was  estimated 
by  the  Commissioners,  if,  in  the  subsequent  action,  he  had 
his  day  in  Court  with  full  opportunity  to  contest  the  charge 
before  it  was  declared  a  lien  upon  his  land,  or  a  judgment  to 
be  collected  out  of  his  general  property." 

City  of  Stockton  vs.  DaJil,  3  W.  C.  R.,  308. 

The  Court  there  had  occasion  to  construe  the 
provisions  of  the  Charter  of  Stockton  relating  to 
assessments  for  the  improvement  of  streets. 

The  Charter,  [Sec.  27,  Ch.  422,  Stats.  1871-2, 
pp.  607-608,]  provides,  that  the  City  Assessor 
shall  make  an  assessment  for  the  work  done,  and 
prepare  an  assessment  list  showing  the  names  of 
the  owners,  the  description  of  the  property  as- 
sessed, and  the  amount  of  each  assessment ;  which, 
together  with  a  diagram,  he  shall  file  with  the  City 
Council,  (no  provision  being  made  for  a  hearing 
before  him  by  the  taxpayer.)  The  City  Council 
shall  thereupon  give  notice  of  a  day  on  which 
they  shall  sit  as  a  board  of  equalization,  and 
all,  or  any  person  directly  interested  in  the  assess- 
ment, feeling  aggrieved  by  any  of  the  acts 
or  proceedings  concerning  the  assessment,  or 
having  or  making  any  objection  to  the  correctness 
or  legality  of  the  same,  shall,  at  such  time  specially 


41 

make  known  the  cause  of  objection  or  complaint. 
Said  Board  may  correct,  alter  or  modify  said  as- 
sessment in  such  manner  as  to  them  may  seem 
just,  and  may  direct  the  x'\ssessor  to  alter  or  cor- 
rect it,  etc. 

Said  the  Court  :     "  The  statute  *         *  *  gives 

an  appeal  to  the  Council  by  any  person  claiming  to  be  ag- 
grieved by  the  assessment,  and  authorizes  the  Council  to 
'  correct,  alter  or  modify  '  an  assessment.  We  know  of  no 
constitutional  inhibition  upon  such  legislation," 

Matter  0/  De  Peyster,  80  N.Y.,  565,  572. 

This  was  a  motion  to  vacate  an  assessment  on 

the  lands    <:>{   petitioner  for  the  construction   of  a 

sewer  in  the  City  of  New  York, 

"  The  appellant  testifies,"  said  the  Court :     "  That  he  had  no 
notice  that  an  assessment  was  to  be  imposed  on  him,       *         * 

*  It  is  not  needed  that  in  this  case  we  decide  whether  an 
assessment  will  be  valid,  though  no  notice  of  any  kind  is  given 
to  the  owner  of  the  property,  until  he  is  called  upon  to  pay 
the  amount  rated  against  him.  That  question  is  not  here. 
The  legislature  has  prescribed  for  notice  before  the  assessment 
is  final  and  effectual.  Chap.  326,  Laws  of  1840,  §  2,  has  pro- 
vided for  notice  of  the  completion  of  the  estimate  and  assess- 
ment, to  be  given  to  owners  or  occupants  of  premises  affected. 
This  notice  is  by  ])ublicati()n  in  daily  news])apers  for  objections 
in  writing  to  be  presented  in  a  time  named,  which,  if  not 
yielded  to  by  the  primary  board,  are  to  be  sent  up  with  the 
assessment  to  the  reviewing  and  confirming  board."        *       * 

*  "'Ihe  opinion  in  Stuart  vs.  Palmer,  (74  N.  Y.,  183,)  is  not 
in  conflict.  That  demands  only  that  some  notice  be  given 
and  an  opportunity  for  hearing  had,  before  the  assess- 
ment becomes  conclusive.  It  says  :  '  The  legislature  m.iy 
prescribe  the  kind  of  notice,  and  the  mode  in  which  it  shall  be 
given?'  We  will  not  reason  to  the  end,  that  such  notice  is  all 
that  is  exacted  l)y  the  law  of  the  land.     .Such  has  been  the  course 


42 

of  procedure    in  such  case  too  long  to  be  now  disturbed  save 
by  legislative  or  fundamental  provision." 

City  of  St.  Loins  vs.  Richeson,  76  Mo.,   470. 

This  was  an  action  to  collect  an  assessment  up- 
on certain  property  benefited  by  a  local  improve- 
ment. The  city  charter  made  no  provision  for  a 
hearing  before  the  Commissioners,  or  on  the  orig- 
inal preceedings  in  the  Circuit  Court  prior  to  the 
levy  of  the  assessment ;  but  by  an  ordinance  it 
was  provided  that  the  City  Controller  should  issue 
"  special  tax  bills,"  in  accordance  with  the  Com- 
missioners' report,  and  deliver  them  to  the  City 
Collector,  who  should  give  notice  by  advertise- 
ment to  all  parties  interested  by  name  that  said 
bills  are  in  his  hands  for  collection,  and  would  so- 
remain  for  60  days,  during  which  time  payment 
might  be  made,  and  that  all  bills  remaining  un- 
paid after  that  period  would  be  enforced  by  legal 
proceedings  ;  they  being  turned  over  to  the  City 
Counselor,  who  should  commence  suit  thereon, 
in  the  name  of  the  City. 

It  was  claimed  for  the  plaintiff  that  "if  notice 
should  be  held  indispensable  to  a  valid  exercise 
of  the  taxing  power,  the  opportunity  for  a  hear- 
ing when  sued  under  the  ordinance  for  the  col- 
lection of  the  tax-bill,  as  in  this  case,  is  sufficient 
notice  ;  that  notice  and  opportunity  to  be  heard 
after  the  assessment  and  before  the  collection,  or 
during   the  progress    of  the   suit   to   collect   is  as 


efficaci'ous   as   if    given    before^,  and   obviates  the 
objection." 

Said  the  Court,  ( p.  488  )  :  "  We  do  not  mean  to  say  that  this 
assessment  of  benefits  is  of  itself  inoj:)erative  and  without  any 
effect  whatever,  but  what  we  no  mean  to  hold,  is,  that  while  it 
is  valid,  as  a  preliminary  inquiry,  and  while  the  tax-bill  issued 
thereon,  is  good  as  the  basis  for  the  suit  directed  to  be  issued 
thereon,  yet  it  does  not  have  and  was  not  intended  to  have 
any  binding  or  conclusive  effect  against  the  party  when  thus 
sued.  *  *  *  Whether  it  would  have  been  better  for  the 
charter  to  have  required  that  this  inquiry,  ( r.  e.,  as  to  the 
amount  of  the  charge,  etc.,)  should  have  taken  place  in  the 
original  proceedings  in  the  Circuit  Court  after  due  notice 
thereof,  or  as  now  provided  in  this  suit,  to  enforce  and  collect 
the  tax-bill,  was  matter  for  the  legislature,  and  is  no  concern 
of  ours.  We  conclude  therefore,  that  it  was  competent 
for  the  defendant  in  this  suit  to  have  set  up  and  mantained 
by  way  of  answer  any  good  and  valid  defence  they  might 
have,  or  which  they  could  have  presented  to  the  original  pro- 
ceedings in  the  Circuit  Court  for  the  condemnation  of  said 
property,  and  the  assessment  of  said  benefits  if  they  had  been 
made  parties  thereto,  and  had  notice  thereof  But  the  ans- 
wer actually  made  by  these  defendants  was  that  they  were 
not  parties  to,  and  had  no  notice  of  said  original  proceeding 
in  the  Circuit  Court  during  its  pendency,  and  were  not 
bound  thereby.  It  may  be  conceded  that  this  answer  is  true, 
and  yet,  if  our  construction  of  the  charter  and  ordinance  is 
correct,  this  answer,  *  *  does  not  state  facts  sufficient  to 
constitute  a  defence  to  this  action.  It  may  be  true  that  they 
were  not  parties  to  the  original  j)roceeding  during  its  pen- 
dency, and  had  no  notice  thereof ;  yet  that  fact  is  wholly  im- 
material if  they  are  parties  hereto  duly  notified,  and  ran  be 
heard  in  their  defence  herein." 

The  Court  cites  at  length,  Cooley  on  Taxation,  pp.  265  266, 
where  it  was  said:  "In  tax  proceedings,  every  inhai)itant  of 
the  State  is  liable  to  have  a  demand  established  against  him 
on  the  judgment  of  others,  regarding  the  sums  which  he 
should  justly  and  ecjuitably  contribute  to  the  public  revenues. 
Every  proi)erty  owner  in  the   State,   whether   an   inhabitant  or 


44 

not,  is  liable  to  have  a  lien  in  like  manner  established  against 
his  property.  *  *  In  such  ])roceedings  therefore,  it  must 
be  a  matter  of  the  utmost  importance  that  he  should  have 
some  opportunity  to  be  heard  before  the  charge  /s  fully  estab- 
lished agai7ist  him.  *  *  The  obligation  to  make  provision 
for  this  purpose  is  recognized  by  the  statutes  of  the  several 
States.  By  some,  the  person  assessed  is  allowed  to  reduce 
what  he  claims  to  be  an  excessive  assessment  by  his  own 
oath  ;  by  others,  he  is  allowed  an  appeal  to  some  board  of  re- 
view, and  in  all,  perhaps,  some  method  is  provided  by  which 
he  may  have  a  hearing  before  the  assessment  becomes  fixed  afid 
final  against  him.  *  *  It  is  not  customary  to  provide 
that  the  taxpayer  shall  be  heard  before  the  assessment  is  made, 
but  a  hearing  is  given  afterwards,  either  before  the  assessors 
themselves,  or  before  some  court  or  board  of  review." 

The  Court  also  cites  the  case  of  McMillan  vs.  Anderson,  95 
TJ.  S.,  37,  where  it  was  held,  that  "  the  revenue  laws  of  a  State 
may  be  in  harmony  with  the  fourteenth  amendment  to  the 
Constitution  of  the  United  States,  which  declares,  that  no 
State  shall  deprive  any  person  of  life,  liberty  or  property  with- 
out '  due  process  of  law,'  although  they  do  fiot  provide  that  a 
person  shall  have  ati  opportunity  to  be  prescjit  when  a  tax  is 
assessed  against  him." 

Wilson  vs.  Kajfe,  42  N.  J.  L.,  612,  was  a  case 
arising  out  of  assessment  against  certain  lands, 
benefited  by  the  improvement  of  a  street. 

The  Court  said  :  "The  supposed  defect  in  the  procedure  is 
that  the  land  owner  had  no  notice,  either  actual  or  construc- 
tive, of  the  hearing  before  the  Commissioners,  and  therefore 
had  no  opportunity  of  presenting  his  case  before  them.  The 
decision  brought  here  for  review  held  this  to  be  a  fatal  in- 
firmity *  *  The  present  act  does  in  express  terms  provide 
for  a  hearing  in  the  course  of  the  procedure,  its  provision  in 
this  respect  -being  substantially  this  :  the  judges  of  the  Com- 
mon Pleas  of  Hudson  County  are  required  to  appoint  three 
commissioners  to  assess  the  cost  of  these  street  improvements 
upon  the  land  benefited,  in  certain  specified  proportions,  and 
such  commissioners  are  to  make  a  report,  accompanied  with 


45 

a  map  of  the  lands  assessed,  and  which  report  is  to  be  filed 
with  the  clerk  of  said  Court ;  then  notice  is  to  be  given  for  a 
prescribed  period,  through  the  public  newspapers,  of  the  filing 
of  said  report  and  map,  and  that  the  same  will  be  presented 
to  the  Court  of  Common  Pleas  of  the  County  of  Hudson,  for 
confirmation,  at  a  time  to  be  specified  in  said  notice,  and  that 
said  Court  will  at  said  time  and  place  receive  and  consider 
all  objections  which  may  be  presented  in  writing  against  the 
confirmation  of  said  assessment,  and  such  objections  are  to  be 
considered  and  adjudicated  by  the  Court.  Power  is  given 
to  the  Court,  on  such  hearing,  to  confirm  or  correct  or  alter 
such  report. 

"  In  view,  therefore,  of  such  legislative  scheme,  the  only 
question  arising  is  whether,  according  to  any  kno.vn  legal 
principles,  the  Court  can  say  that  the  provision  thus  made  is 
so  insufficient  that,  if  the  statutory  course  be  pursued,  the 
procedure  must  fall.  It  is  urged  that  a  hearing  before  the 
Court  of  Common  Pleas  is  not  as  beneficial  to  the  land  owner 
as  a  hearinji  before  the  commissioners  would  be.  Such  is  not 
my  opinion,  for  I  think  the  former  much  the  more  preferable, 
as  it  would  take  place  before  a  Court  of  general  jurisdiction, 
having  the  power  to  compel  the  attendance  of  witnesses,  and 
to  examine  them  under  oath.  But,  granting  the  inferiority  al- 
leged, what  legal  value  has  the  fact  ?  Who  is  to  be  the  judge 
of  what  is  best  in  such  case,  the  Court  or  the  Legislature? 
Such  matters,  I  think,  are  plainly  within  the  province  of  the 
law  maker.  It  is  to  be  remembered  that  the  making  of  the 
assessment  was  an  exercise  of  the  taxing  power,  and  that 
the  hearing  i>rovided  for  was  very  similar  to  that  which  usually 
obtains  in  the  ]>rocLSS  of  ordinary  taxation.  In  the  common 
mode  the  Assessor  values  and  assesses  the  properly,  and  the 
]jerson  a.s.sessed  has  an  opportunity  of  a  hearing  before  the 
Commissioners  of  Appeals,  and  not  in  the  first  instance  !)cfore 
the  taxing  officer;  and  in  the  i)Ian  ap])ointed  by  the  present 
act  we  have  the  counterpart  of  such  a  procedure  if  we  sul)sli- 
tute  for  the  appellate  tribunal  held  by  the  Commixsio.iers  of 
Appeals,  in  cases  of  taxation,  the  Court  of  Common  Pleas. 
'Ihe  Legislature,  in  the  act  now  before  us,  has  pnnided  that 
the  land  owner  shall  have  a  hearing  of  a  prescribed  character, 
and  I   do  not  see  how  this  Court  can  say  that  such  hearing  is 


46 

not  sufficient,  but  that  he  must  have  two  hearings.  For  this 
error  I  think  the  judgment  of  the  Supreme  Court  should  be 
reversed." 

This  case  undoubtedly  overrules  the  doctrine 
laid  down  in  TJie  State  vs.  Road  Connnissioiiers, 
41  N.  J.  L.,  83,  upon  which  so  much  reliance  is 
placed  by  respondents,  both  cases  arising  under 
the  same  statutes,  and  the  decisions  being  diamet- 
rically and  irreconcilably  opposite. 

Cleveland  Ys.  Tripp,  13  R.  I.,  50,  64. 

Action  to  annul  certain  assessments  for  the 
construction  of  a  sewer.  The  complainants  con- 
tended that  the  statute  under  which  the  assess- 
ment was  made  was  unconstitutional,  because  it 
did  not  direct  any  notice  to  be  given  of  the  assess- 
ment. 

The  Court  said  :  "  Previously,  under  other  forms  of  taxation 
or  assessment  it  has  been  usual  in  this  State  to  rec^uire  no- 
tices to  be  given ;  but  such  notices,  it  has  been  held,  are  not 
essential  to  the  validity  of  such  tax  or  assessment.  *  *  It 
has  been  held  by  the  Supreme  Court  of  the  United  States  that 
such  an  assessment  without  notice  and  without  any  right  of 
appeal,  is  not  void  for  repugnancy  to  the  provision  of  the 
Fourteenth  Amendment  of  the  Constitution  of  the  United 
States  that  no  State  '  shall  deprive  any  person  of  life,  liberty 
or  property  without  due  process  of  law.'  *  *  It  is  enough 
the  Court  holds,  if  the  person  assessed  has  an  opportunity  to 
contest  the  validity  of  the  assessment  in  some  judicial  pro- 
ceeding, after  it  has  been  made.  We  are  not  prepared,  there- 
fore, to  hold  the  statute  unconstitutional  on  this  ground." 

Mattel'-   Application    Mayor,  etc.,  99   N.  Y., 

569,  580. 

"  That   the  hearing,"  said  the    Court    "  allowed  before    the 
Commissioners,  follows  their  estimate  of  damages  is  equally  an 


immaterial  suggestion.  The  same  thing  is  true  of  assessors 
in  finding  their  basis  of  taxation.  In  each  case,  the  first 
judgment  is  tentative  and  not  final,  and  enables  the  parties 
interested  to  know,  before  incurring  any  expense  or  trouble  of 
a  hearing,  whether  such  is  needed  or  desirable." 

Brown  vs.  City  of  Denver,  2  W.   C.   R.,  618, 
622. 

The  Court  said  :  "  The  doctrine  of  the  authorities  is  that 
whenever  it  is  sought  to  deprive  a  person  of  his  property  or  to 
create  a  charge  against  it,  preliminary  to,  or  which  may  be  the 
basis  of  taking  it,  the  owner  must  have  notice  of  the  proceed- 
ings, and  be  afforded  an  opportunity  to  be  heard  as  to  the 
correctness  of  the  assessment  or  charge.  It  matters  not  what 
the  charadter  of  the  proceedings  may  be,  by  virtue  of  which 
his  property  is  to  be  taken,  whether  administrative,  judicial, 
summary  or  otherwise,  at  some  stage  of  it,  and  before  the 
property  is  taken  or  the  charge  becomes  absolute  against-  either 
the  owner  or  his  pro|)erty,  an  opportunity  for  the  correction  of 
wrongs  and  errors  which  have  been  committed,  must  be  given, 
otherwise,  the  constitutional  guarantee  ( that  no  [)erson  shall  be 
deprived  of  his  prop^jrty  without  due  process  of  la  .v,)  is  infringed. 
Learned  dissertations  ui)on  the  phrase  'due  i^rocess  of  law, 
have  been  written  by  judges  and  law  writers,  but  as  applicable 
to  summary  proceedings  of  the  character  under  consideration, 
(viz  :  proceedings  for  the  construction  of  sidewalks  on  streets 
and  the  assessment  of  the  costs  thereof,  on  the  parties  benefited,) 
the  meaning  is  comprehended  in  the  foregoing  paragraph.  If 
the  law  authorizing  the  proceedings,  provides  for  notice  to  the 
owner  of  the  property  to  be  affected,  and  gives  him  an  oppor- 
tunity to  appear  at  a  specified  time  or  place  before  a  board  or 
tribunal  competent  to  administer  proj^er  relief,  in  order  that  he 
may  be  heard  concerning  the  correctness  of  the  charge,  before  it 
in  made  conclusive,  the  constitutional  requirements  are  satisfied." 

Allen    vs.    City  of  C liar Ic stoic  11,    111     Mass., 

Action  to  recover  money  for  a  scnverage  assess- 
ment pail  to  the   defendant    under    protest.      Tlie 


48 

act  provided  that  an  assessment  should  be  made, 
ascertained  and  certified  by  the  Mayor  and  Alder- 
men on  all  persons  benefited  by  the  construction 
of  a  main  drain  or  common  sewer,  through  the  con- 
sequent drainage  of  his  cellar  or  land,  of  which 
assessment,  notice  should  be  give  to  the  parties 
charged,  and  that  any  person  aggrieved  by  such 
assessment,  might,  at  any  time,  within  three 
months  after  notice,  apply  for  a  jury. 

Said  the  Court ;  "  The  statute  which  authorizes  a  part  of  the 
charge  for  making  and  repairing  main  drains  or  common  sew- 
ers to  be  assessed  upon  persons  who  receive  benefit  thereby, 
does  not  require  that  such  persons  should  have  previous 
special  notice  and  opportunity  to  be  heard  before  the  Mayor 
and  Aldermen  or  Selectmen.  *  *  Before  they  can 
be  legally  'charged'  with  such  an  assessment,  notice  thereof 
must  be  given  them  ;  after  which,  if  they  desire  to  contest  the 
fact  or  the  amount  of  their  just  liability,  a  proper  tribunal  is 
provided  for  the  purpose.  *  *  We  discover  nothing 
unreasonable  in  the  provisions,  and  no  want  of  proper  regard 
for  the  rights  of  persons  liable  to  be  affected  by  such  proceed- 
ings. *  *  *  'Pl^g  assessment  having  been  laid  in 
accordance  with  law,  *  *  *  j^g  judgment  for 
defendant         *         *         *         must  be  affirmed." 

Butler  vs.   Worcester,  i  12  Mass.,  541,  555-6. 
Action   to  recover  back  a    sum  of    money    paid 
under  protest,  as  an  assessment  for  sewerage  and 
drainage  purposes  in  the  City  of  Boston. 

"  It  is  now,"  said  the  Court,  "  too  well  settled  to  require  a  dis- 
cussion of  the  general  proposition,  that  a  statute  authorizing  the 
cost  of  a  local  improvement  of  this  kind  to  be  levied  by  as- 
sessment upon  the  estates  benefited  thereby,  according  to  the 
judgment  of  the  municipal  authorities  in  the  first  instance,  and 
allowing  to  any  party  aggrieved  by  their  estimate,  the  right  to 


49 

have  it  revised  by  a  jury,  is  within  the  constitutional  power  of 
the  legislature.  *  *  *  It  is  objected  that  the  plaintiff 
and  other  parties  assessed  were  entitled  to  notice  and  a  hearing 
upon  the  question  of  the  amount  to  be  assessed  upon  them, 
before  the  tribunal  that  laid  the  assessment ;  and  that  the  only 
notice  and  hearing  were  before  the  Mayor  and  Aldermen  of 
1871,  but  the  assessment  was  made  by  the  Mayor  and-  Alder- 
men of  1872,  who  were  not  the  same  persons.  But  the  stat- 
utes does  not  require  any  notice  to  be  given  by  the  Mayor  and 
Aldermen  before  laying  the  assessment,  and  fully  secures  the 
rights  of  any  party  assessed,  by  requiring  notice  to  be  given  to 
him  of  the  assessment  when  made,  and  allowing  him  to  appeal 
to  a  jury  when  dissatisfied.  *  *  The  question  whether 
any  hearing  should  be  had  before  laying  the  assessment  rested 
therefore  in  the  discretion  of  the  Mayor  and  Aldermen.  The 
Mayor  and  Aldermen  of  187  i,  gave  public  notice  to  all  persons 
liable  to  assessment  under  the  Statute,  that  it  was  intended  to  as- 
sess upon  them  '  their  proportionate  share  of  the  expenditure  of 
said  city  for  drains  and  sewers  according  to  law,  and  that  they 
might  be  heard  on  any  objections  which  may  be  made  to  said 
assessment;  and  after  such  hearing  determine  J  th.it  a  portion  of 
the  expanse  of  the  sewers  be  assessed  upon  the  property  specially 
benefited,'  and  then  referred  the  papers  to  the  next  Board  of  Al- 
dermea" 

"  The  plaintiff  was  not  entitled  as  a  matter  of  right  to  be  heard 
before  the  new  board  on  the  amount  to  be  assessed  upon  his  es- 
tate. His  remedy,  if  he  was  dissatisfied  with  that  amount,  should 
have  been  sought  by  application  to  the  Mayor  and  Aldermen  for 
an  abatement,  or  by  petition  for  a  jury  as  provided  in  sec.  4." 

Hasrar  \s.   Rcclanialion   Pislricl,   i  i  1    U.  .S., 

/iO. 
ITic  Court  said  :  "  Where  a  tax  is  levied  on  property  accord- 
ing to  the  value,  to  be  ascertained  liy  assessors  ajjpointcd  for 
that  purjjose  upon  such  evidence  as  they  may  obtain.  *  *  * 
the  officers  in  e>timating  the  value  act  judicially,  and  in  most  of 
the  States  provision  is  made  for  the  correction  of  errors  com- 
mitted by  them,  through  bo.irds  of  revision  or  equalization,  sit- 
ting at  designated  |)eriods  provitled  by  law  to  hear  comjjlaints 
respecting  the  justice   of  the   a.s.sessments.      The    l.iw    in    ])rc- 


50 

scribing  the  time  when  such  complaints  will  be  heard,  gives 
all  the  notice  reciuired,  and  the  proceeding  by  which  the  valuation 
is  determined,  though  it  may  be  followed,  if  the  tax  be  not  paid, 
by  a  sale  of  the  delinquent's  property,  is  due  process  of  law." 

"  In  some  States,  instead  of  a  Board  of  Revision  or  Equali- 
zation, the  assessment  may  be  revised  by  proceedings  in  the 
Courts,  and  be  there  corrected  if  erroneous,  or  set  aside  if  in- 
valid, or  objections  to  the  validity  or  amount  of  the  assessment 
may  be  taken  when  the  attempt  is  made  to  enforce  it.  In  such 
cases  all  the  opportunity  is  given  to  the  taxpayer  to  be  heard  re- 
specting the  assessment,  which  cm  be  deemed  essential  to  ren- 
der the  proceedings  due  process  of  law.  The  assessment  under 
consideration  could  by  the  law  of  California  be  enforced  only 
by  legal  proceedings,  and  in  them  any  defense,  going  either  to 
its  validity  or  amount,  could  be  pleaded  *  *  The  numerous 
decisions  cited  by  counsel  *  *  as  to  the  necessity  of  notice,, 
and  of  an  opportunity  of  being  heard,  are  all  satisfied  where  a 
hearing  in  Court  is  thus  allowed. 

2.  It  is  next  urged  that  the  parties  were  en- 
titled to  personal  notice  of  the  proceedings  ;  and 
that,  as  the  only  notice  provided  by  the  statute  is 
by  publication,  this  violates  their  constitutional 
rights. 

To  this  I  answer: 

The  contrary  has  been  established  by  such  a 
long  line  of  precedents  that  it  almost  seems  affect- 
ation to  cite  them.  Nevertheless,  the  following 
are  a  few  of  the  decisions  : 

People  vs.  Mayor  of  Brooklyn,   4  N.  Y.,  441. 

"Another  [objection]  is,  that  no  notice  was  given  to  the  own- 
ers of  land  assessed.  In  the  case  of  the  Owners  of  Ground, 
etc.,  vs.  The  Mayor,  etc.,  of  Albany  f'15  Wend.,  374),  it  was  ad- 
judged that  the  Legislature  had  authority  to  prescribe  what  no- 
tice should  be  given  in  the  case  of  an  assessment  like  the  pres- 


51 

ent,  and,  if  notice  was  given  as  thus  required,  it  is  sufificient. 
The  only  notice  required  by  the  statute  under  which  the  present 
assessment  was  made,  is  a  notice  to  be  published  in  the  corpo- 
ration newspapers  for  ten  days  before  the  day  fixed  for  the 
alteration  or  confirmation  of  the  assessment  by  the  Common 
Council.  This  gives  to  any  person  assessed  an  opportunity  to 
be  heard,  and  it  is  all  the  notice  necessary." 

The  Methodist  vs.  The  Mayor,  6  Gill,  391. 

Under  a  charter  authorizing  the  proceeding", 
the  Mayor  and  City  Council  ordered  a  street 
widened,  and  appointed  a  Board  of  Commissioners 
to  assess  and  tax  the  expenses  thereof  upon  cer- 
tain property.  The  Commissioners  were  to  give 
sixty  diys'  notice  by  publication  that  they  would 
proceed  at  a  given  place  to  exercise  the  power 
and  perform  the  duty  assigned  them.  The  law 
provided  that  an  appeal  to  the  Baltimore  City 
Court  be  allowed  to  all  persons  improjx^rly  as- 
sessed— said  Court  having  power  to  hear  and  fully 
examine  the  subject  and  decide  therein,  with  pro- 
vision for  summoning  a  jury,  to  try  any  (juestion 
of  fact.  Tii:j  (Jill)  notic(i  provided  of  the  comple- 
tion of  the  assessmcMit,  was,  that  "  the  Register  of 
the  City  of  H.ihimore  shall  cause  a  c()|)y  of  said 
assessment  to  b;;  publisht-d  for  thirty  days,  in  ;it 
least  two  (jf  the  daily  newspapt-rs  of  said  city." 
The  time  for  an  appeal  from  such  assessment  was 
thirty  days  after  the  Register's  i)ul)licalion. 

Where  all  thes(^  publications  had  b('en  made, 
the  Court  said  : 


52 

"  The  law  imputes  notice,  and  will  not  admit  testimony  to 
disprove  it  in  a  case  like  the  present" 

Matter  of  De  Peyster,  80  N.  Y.,  567. 

Said  the  Court :  "  The  determination  of  a  municipality  to 
enter  upon  a  work  of  local  improvement  is  not  invalid  for  the 
lack  of  prior  notice  to  owners  of  property  to  be  affected,  of  an 
intention  so  to  do. 

"  The  appellant  testifies  that  he  had  no  notice  that  an  assess- 
ment was  to  be  imposed  on  him ;  by  which  is  meant,  as  we  un- 
derstand it,  notice  personal  and  peculiar  to  himself.  Personal 
notice  is  not  needed.  The  Legislature  may  prescribe  what  the 
manner  of  notice  shall  be.  *  *  *  The  Legisla- 
ture has  prescribed  for  notice  before  the  assessment  is  final  and 
effectual.  Chap.  326,  Laws  of  1840,  Sec.  2,  has  provided  for 
notice  of  the  completion  of  the  estimate  and  assessment  to  be 
given  to  owners  or  occupants  of  premises  affected.  This  notice 
is  by  publication  in  daily  newspapers,  for  objections  in  writing 
to  be  presented  in  a  time  named,  which,  if  not  yielded  to  by  the 
primary  Board,  are  to  be  sent  up  with  the  assessment  to  the 
reviewing   and   confirming    Board.  *  *  *  ly^ 

will  not  reason  to  the  end,  that  such  notice  is  all  that  is  exacted 
by  the  law  of  the  land.  Such  has  been  the  course  of  procedure 
ifi  such  cases,  too  long  to  be  now  disturbed,  save  by  legislative  or 
fundamental  provision.  *  *  *  It  [the  petition]  pre- 
sents the  question  of  whether  it  is  needful  that  there  should  be 
personal  and  individual  notice,  as  distinguished  from  the  pub- 
lic and  general  notice  given  by  advertisements  in  newspapers. 
JVe  thi/ih  that  it  is  not  needful." 

St7iart  vs.  Palmer,  74  N.  Y.,  183. 
Commissioners  were  appointed  to  lay  out  At- 
lantic avenue,  in  the  City  of  Brooklyn.  They 
were  to  assess  the  value  of  the  land  taken,  and  to 
assess  the  amount  of  the  award  and  expenses 
upon  the  lands  and  premises  benefited.  Before 
making  the  assessment  and   awards,  public  notice 


was  required  to  be  published  in  two  or  more  pub- 
lic newspapers  of  the  county  of  Kings,  at  least 
twenty  days  before  the  same  were  to  be  made,  of 
the  time  and  place  of  meeting  to  make  the  same. 
{Vide  these  proceedings,  stated  in  this  case,  in  17 
Hun.  23.)     Of  this  the  Court  of  Appeals  said  : 

"  The  Act  made  ample  provision  for  notice  to  and  hearing 
of  all  the  persons  interested  before  the  making  and  final  con" 
firmation  by  the  Supreme  Court  of  the  award  and  assessment. 
The  Legislature  may  prescribe  the  kind  of  notice  and  the  mode 
in  which  it  shall  be  given,  but  it  cannot  dispense  with  all 
notice." 

Johnson  vs.  yoliet,  23  111.,  202,  206. 

"  Had  the  Legislature  in  this  case — the  exercise  of  the  right 
of  eminent  domain — prescribed  the  ordinary  notice  by  posting 
or  publishing  in  a  newspaper,  which  the  owner  might  never  see 
*  *  *  though  such  constructive  notice,  in  a 
great  majority  of  cases,  would  not  reach  a  non-resident,  yet  all 
will  admit  he  would  be  bound  by  it." 

The  State  vs.  The  Mayor,  24  N.  J.  L.,  662. 

Of  Commissioners  appointed  to  make  an  assess- 
ment of  expense  incurred  in  improving  a  street, 
the  Court  say  : 

"  It  is  obviously  i)roper  that  they  should  hear  the  parties  in- 
terested ;  and  I  think  such  parlies,  if  accessible  by  reasonable 
diligence,  are  entitled  to  notice  of  the  time  and  |)lace  of  their 
meeting  to  fulfill  their  duties.  *  >         #  Where  the 

statute  provides  for  a  notice  by  advertisement  or  oth^i-ivise,  such  a 
notice  is  sufficient." 

Oiuners  of  Ground  x"^.  The  Mayor,  15  Wend., 

374- 
Proceeding  for  the  opening  of  a  pubh'c  sMuare, 
for   assessment   according   to   benefits,   etc.      1  he 


54 

only  notice  to  owners  of  property  affected  was  one 
published  in  public  prints,  "  specifying  the  ground 
required,  and  the  time  and  place  at  which  the 
damages  and  recompense  to  the  owners  thereof 
would  be  inquired  into  and  assessed,  and  the  dam- 
ages apportioned  amongst  the  owners  of  ground 
to  be  benefited."  The  Court  held  the  notice  suf- 
ficient, saying : 

"  The  only  reasonable  rule,  therefore,  is  that  the  Legislature 
shall  prescribe  what  notice  shall  be  given." 

Wilson  vs.  Hathaway,  42  Iowa,  173,  176. 

The  Court  said  : 

"  We  have  no  doubt  of  the  power  of  the  Legislature  to  pro- 
vide for  the  condemnation  of  the  right  of  way  for  public  high- 
ways, upon  notice  by  publication  in  newspapers,  or  by  notices 
posted.  The  proceeding  is  in  the  nature  of  proceedings  in  renty 
in  which  the  Court  acquires  jurisdiction  of  the  property,  which 
is  the  subject  of  the  adjudication." 

CiLpp  VS.  Coininissioners,  19  Ohio  St.,  173. 
Application  was  made  to  enjoin  the  County 
Commissioners  from  constructing  a  ditch.  Al- 
though notice  by  publication  was  admitted,  peti- 
tioners averred  that  they  were  never  served  with 
actual  notice  of  the  proceedings. 

Said  the  Court : 

"  Nothing  is  better  established  as  law  than  that  such  rights 
(/.  e.,  the  right  of  the  public  to  take  and  that  of  the  owner  to 
receive  compensation  for  his  land)  may  be  affected,  and  lost  to 
the  owner  by  a  proceeding  i7i  rem,  and  upon  merely  constructive 
notice.  The  law  of  all  such  proceedings  rests  in  the  necessity  of 
the  case,  and  in  no  instance,  perhaps,  is  that  necessity  more 
plainly  apparent  than  in  the  construction  of  public  roads  and 
other  improvements  of  like  nature.     Without  the  aid  of  some 


55 

such  proceeding  the  construction  of  roads  and  ditches  would  be 
next  to  impracticable.     A  similar  proceeding  is  provided,  and  a 
like  provision  as  to  the  waiver  of  claims  is  made,  in  the  law  for 
the  establishment  ot  roads.         *         *         Some  such  provision 
of  law  seems  mdispensable.    The  owner  of  land  necessary  to  be 
used  for  a  road  or  ditch  may  be  absent  or  unknown.     The  title 
may  be  in   dispute.     The  legal  title  may  be  in  one,  and  the 
equitable  title  in  another.     One  may  have  the  present  estate, 
and  the  other  the  reversion  or  remainder.     The  owner  may 
make   a   secret   conveyance,    on    purpose   to   evade   the   law. 
.  Without  the  power  to  proceed  in  such  form  against  the  land  it- 
self, the  right  guaranteed  to  the  public  by  this  provision  of  the 
Constitution,  to  take  the  land  for  public  u.ses,  would  be  of  little 
avail.     In  the  construction  of  such  improvements,  of  any  con- 
siderable length,  personal  notice,  if  at  all  practicable,  would  be 
attended  with  great  inconvenience  and  uncertainty.     It  w'as  the 
duty  of  the  Legislature  to   provide  some  reasonable  means  for 
securing  both  to  the   public  and  to  the  owner  of  land  these 
rights,  so  guaranteed  by  the  Constitution.     To  recjuire  in  such 
cases  personal  notice  to  the  owners  would,  in  our  judgment,  be 
quite  as  unreasonable  as  to  require  that  owners  of  land  should 
*        *        *       'maintain  some  kind  of  an  agency  in  the  vicinity 
of  their  lands,  through  which  they  may  be  informed  of  proceed- 
ings affecting  them.'     They  are  presumed  to  know  of  the  exist- 
ence of  this  Act,  and  therefore  to  have  notice   that  their  lands 
are  liable  at  any  time,  upon  four  weeks'  notice  of  publication  to 
that  effect,  to  be  taken   for  the  use  of  a  ditch,  and  that  their 
non-claim  will  betaken  and  held  as  a  waiver  of  all  right  to  com- 
pensation or  damages.     The  whole  proceeding  is  subtantially  in 
rem.         #         *         *         Jurisdiction  over  the  person  of  the 
j)arties  is  not  neccs'^ary.  The  Act  in  (juestion  relates  to  and  affects 
only  the  remedy  and  not  the  rights  of  the  parties,  and   is  there- 
fore within  the  general  scoi)e  of  legislative  power.     The  Con- 
.stitution    does    not   take   away    that    power.      It   defines   and 
guarantees  the  right  of  the  i)arty  to  his  land,  or  to  a   sure   and 
adecjuatc  compensation  therefor.     The  remedy — the  proceeding 
by  which  that  right  is  to  be  affected — is  still   left   to  legislative 
discretion." 


56 

Polly  vs.  Saratoga,  19  Barb.,  449,  460. 
Under  the  provisions  of  an  Act  of  the   Legisla 
ture,  notice  was  given   by   pubHcation   in   a   news- 
paper,   that    at    a  time   and  place   named,  a   jury 
would  be  drawn   to  appraise  the   value  of  certain 
lands  which  were  needed  for  defendants'  roadway. 

The  Court  said  : 

"  It  is  objected  that  the  plaintiff  had  no  notice  of  the  drawing  • 
of  the  jury  by  the  Clerk,  Sheriff  and  Judge.  If  by  this  is 
meant,  no  notice  in  writing  was  served  on  him  of  the  time  and 
place  of  such  drawing,  the  objection  is  founded  in  truth.  But 
such  written  notice  was  not  required  by  the  ninth  section  of  the 
Act.  All  that  is  demanded  by  that  section  is,  that  the  Judge, 
on  receiving  the  petition,  shall  direct  the  vSheriff  of  the  county 
to  give  public  notice  in  at  least  one  newspaper  printed  in  the 
said  county,  that  at  some  future  day,  not  less  than  thirty  days 
from  the  first  publication  of  the  said  notice,  the  Clerk  of  the 
county  and  the  said  Judge  will  proceed  to  draw  at  the  Clerk's 
office  the  names  of  twelve  persons,  etc.  The  plea  alleges  that 
the  Judge  appointed  the  day  for  this  drawing,  issued  his  war- 
rant to  the  Sheriff,  requiring  him  to  give  notice  by  publication, 
and  that  said  Sheriff  did  publish  the  notice  as  required  by  law, 
in  a  public  newspaper  in  said  county,  the  name  of  which  is 
given.  These  facts  are  admitted  by  the  demurrer.  The 
plaintiff,  therefore,  had  precisely  the  notice  which  the  statute 
required." 

Freetoivn  vs.  County  Coiniuissioners,  9   Pick. 
46. 
Speaking  of  the  sufficiency  of  the  notice  of  pro- 
ceedings for  laying  out  a  road,  the  Court  said  : 

"  We  have  taken  much  pains  to  ascertain  whether  due  notice 
was  given  of  the  meeting  of  the  Commissioners,  to  consider  the 
application  for  this  road,  so  that  a  hearing  might  have  been 
had  of  the  inhabitants  of   Freetown,  who  now  ask  to  have  the 


57 

proceedings  quashed.  The  result  of  oar  inquiries  is,  that  there 
was,  without  doubt,  such  notice.  The  statute  giving  authority 
to  Commissioners  of  highways,  prescribes  no  particular  mode 
of  notice.  It  merely  requires  that  '  reasonable  notice  '  shall  be 
given  of  the  time  and  place  appointed  for  viewing  the  road 
prayed  for,  and  iifter  such  yiew  and  hearing  of  the  parties,  the 
Commissioners  shall  have  power  to  order  and  determine  the 
making  of  such  road.  The  mode  of  giving  notice  seems  to 
have  been  left  by  the  Legislature  to  the  discretion  of  the  Com- 
missioners. They  adopted  "the  practice  of  advertising  in  a 
newspaper  printed  in  the  county,  the  time  and  place  of  meeting 
for  the  consideration  of  the  application.  All  official  notices 
had  been  usually  published  in  the  same  way.  There  having 
been  legal  notice  of  the  meetings.  *  *  we  do  not  think 
that  a  certiorari  ought  to  be  granted  on  account  of  formal  de- 
fects in  the  proceedings." 

Squares  vs.  Campbell,  41   How.  Pr.,  193,  200. 

An  Act  for  the  seizure  of  estray  animals  tres- 
passing on  private  lands  and  public  hii^hways, 
authorized  in  a  special  proceeding  by  the  party 
aggrieved,  service  of  summons  on  the  owner  by 
posting  in  public  places. 

The  Court  said  : 

"It  is  urged  with  much  force,  that  service  by  posting  as  to  a 
known  owner  of  the  animal  seized,  is  not  a  sufficient  service  on 
which  to  predicate  a  due  proceeding  at  law.  W' ith  the  propri- 
ety of  the  enactment  Courts  have  nothing  to  do  ;  that  is  for  the 
Legislature,  in  its  wisdom  and  discretion,  to  consider,  i  deem 
it  well  settled  that  the  Legislature  has  the  power  to  allow  such 
service.  Service  by  publication  is  allowed  ;  service  by  [)osting 
on  the  door  of  a  concealed  defendant  is  allowed.  In  this  case, 
it  makes  one  rule  of  service  for  all,  both  when  the  owner  is 
known  and  unknown.  If  the  owner  was  unknown  more  could 
not  rea.sonably  be  required  ;  if  known,  it  would  i)e  well  calcu- 
lated to  give  the  person  notice  of  the  proceedings,  so  that  the 
propriety  of  the  manner  of  service  cannot   reasonably  be  (jues- 


58 

tioned.     The  Legislature  is  required  to  make  general  rules ;  it 
cannot  make  a  rule   for  «ach   particular   case.     It  is,  however, 
'sufficient  to  say  that  the  Legislature  deemed  that  mode  of  ser- 
vice sufficient." 

Matter  of  the  Empire  City  Bank,  i8  N.  Y.,  199. 

Action  to  enforce  the  personal  liability  of  stock- 
holders in  an  insolvent  bank,  under  the  Act  of 
1849.  (Ch.  226.)  This  Act  provided  that  notice 
of  a  hearing  before  a  referee  should  be  given  to 
all  stockholders  not  residing  in  the  county,  by 
publication  in  the  State  and  county  newspapers. 

"  The  question  is,"  says  the  Court,  "  whether  personal  service 
of  process,  or  actual  notice  to  the  party,  is  essential  to  consti- 
tute due  process  of  law.  *  *  *  It  may  be  admit- 
ted that  a  statute,  which  should  authorize  any  debt  or  damaf^es  to 
be  adjudged  against  a  person  upon  a  purely  ex  parte  proceeding, 
witho  It  a  pretense  of  notice,  or  any  provision  for  defending, 
would  bs  a  violation  of  the  Constitution  and  be  void;  but 
where  the  Legis'ature  has  prescribed  a  kind  of  notice  by  which 
it  is  reasonibly  probable  that  the  party  proceeded  against  will 
be  apprised  of  what  is  going  on  against  him,  and  an  opportunity 
is  afforded  him  to  defend,  I  am  of  opinion  that  the  Courts  have 
not  the  power  to  pronounce  the  proceeding  ill-gal.  The  Legis- 
lature has  uniformly  acted  upon  that  understanding  of  the  Con- 
stitution. *  *  *  If   ^,g  i^Qi^^    ^^    ^g  j^^^^^^ 

in  order  to  sustain  this  legislation,  that  the  Constitution  does 
not  positively  recjuire  personal  notice  in  order  to  constitute  a 
legal  proceeding  due  process  of  law,  it  then  belongs  to  the 
Legislature  to  determine  whether  the  case  calls  for  this  kind  of 
exceptional  legislation,  and  what  manner  of  constructive  notice 
shall  be  sufficient  to  reasonably  apprise  the  party  proceeded 
against  of  the  legal  steps  which  are  taken  against  him.  *  *  * 
I  conclude  *  *  *  that  the  proceeding  does  not  lose  the 
character  of  legal  process,  within  the  constitutional  provision, 
by  the  omission  to  require  personal  notice  to  be  given  to  all  the 
parties  to  be  charged  as  stockholders." 


59 

Tracey  vs.  Corse,  58  N.  Y.,  143,  151. 

"  That  the  proceeding  is  in  re?n,  does  not  dispense  with  the 
rule  of  universal  justice,  that  a  party  shall  not  be  condemned 
without  an  opportunity  to  be  heard.  It  is  true  that  he  is  not  en- 
titled to  personal  notice,  before  a  Court  can  adjudge  a  forfeiture 
of  his  property ;  but  he  must  have  notice,  either  actual  or  con- 
structive, of  the  proceeding,  or  it  will  be  void.  *  *  * 
Notice  may  be  given  *  *  by  publication,  according  to 
the  usual  practice  of  the  Courts,  and  then  he  is  bound  to  defend 
or  assert  his  rights,  if  he  has  any.  Notice  in  this  way  may  never, 
in  fact,  reach  hifn.  In  many  cases  the  giving  of  personal  notice 
is  impracticable,  nor  is  it  required.  But  the  rule  requiring  notice, 
either  actual  or  constructive,  is  fundamental,  and  ought  never  to 
be  departed  from." 

Chamberlain  vs.  Cleveland,  34  Ohio  St.,  551, 

569- 

An  assessment  was  levied   for  the  opening  of  a 

street,  and  was  subsequently  equalized  by  a  Board 

of  Equalization. 

"  It  is  objected  by  the  plaintiff,"  says  the  Court,  ''  that  the 
equalized  assessment  isvoid,  on  the  ground  that  no  notice  was  give.i 
of  the  time  the  Board  of  Ecjualization  would  proceed  with  the 
ecjualizing  of  the  assessment,  nor  was  any  notice  given  of  the 
filing  of  the  same  with  the  clerk  or  council.  W'e  do  not  think 
this  objection  well  taken.  By  the  provisions  of  Sec.  585,  (Mu- 
nicipal Code),  before  ado|}ting  the  assessment  made  by  the  as- 
sessing Board,  the  council  is  required  to  pahlish  notice  for  three 
consecutive  weeks,  that  such  assessment  has  been  madj,  and 
that  the  .same  is  on  file  at  the  office  of  the  clerk,  for  the  inspect- 
ion and  examination  of  any  person  interested  therein.  VVe  think 
that,  after  the  notice  re(|uired  has  I)een  given,  all  persons  inter- 
ested have  reasonable  op[)ortunity  to  be  heard  against  the  assess- 
ment, and  that,  from  this  [joint,  the  proceeding  must  be  regarded 
as  pending,  and  that  all  persons  interested  are  bound  to  take 
notice  of  what  is  done  u[)  to  the  time  the  equalized  assessment 
is  confirmed." 


6o 

Taylor  \s.    County  Commissioners,    i8    Pick., 

309- 
Action  to  quash  proceedings   for    laying  out   a 

road.  Notice  of  the  location  was  given  by  publi- 
cation in  conformity  with  the  statute.  Petitioners, 
being  non-residents,  denied  the  sufficiency  of  the 
notice. 

Shaw,  C.  J.  said  :  "  Had  the  Legislature  intended  tTiat  every 
proprietor  over  whose  land  the  way  passes  should  have  personal 
notice,  the  statute  would  have  so  directed.  But  it  is  obvious  to 
perceive  what  difficulties  would  arise  from  requiring  the  com- 
missioners, who  are  public  officers,  charged  with  public  duties, 
to  ascertain  the  titles  of  all  the  lands  traversed  by  the  highway 
intended  to  be  located,  and  on  peril  of  rendering  their  proceed- 
ings erroneous  to  give  notice  to  the  right  person.  We  think  that 
the  Legislature  intended  to  provide  for  a  mode  of  constructive 
notice,  which  should  bind  all  persons,  by  whatever  titles  they 
should  hold,  whether  resident  or  non-resident,  and  whether  they 
had  long  held  their  estates  or  acquired  them  during  the  pendency 
of  the  proceedings.  It  may  sometimes  happen  that  actual  notice 
may  not  be  received,  but  the  Legislature  must  have  considered 
that,  on  the  whole,  it  would  operate  to  save  the  rights  of  parties 
for  all  practical  purposes.  It  is  made  constructive  notice  by 
force  of  the  statute,  and  is  to  have  the  force  and  effect  of  actual 
notice." 

Risky  vs.  City  of  St.  Louis,  34  Mo.,  404,  417. 

Proceedings  were  had  for  opening  an  avenue, 
and  assessing  the  costs  of  and  damages  for- the 
same,    notice   of  which   was  given  by  publication. 

Said  the  Court  : 

"  The  fact  that  the  plaintiff  had  no  actual  notice  of  the  pro- 
ceedings does  not  invalidate  them  as  to  him,  or  release  him  from 
liability.  The  act  only  requires  notices  to  the  persons  to  be 
benefitted,  to  be  given  by  i;ublication  in  newspapers,  as  was 
done." 


6i 

People  vs.  Hagai'-,  52  Cal.,  171. 

Proceedings  for  reclaiming  swamp  lands  are  in- 
augurated by  petition,  accompanied  with  a  notice 
by  publication  of  the  hearing  of  the  same.  The 
complaint  averred  that  the  Board  ordered  the  pe- 
tition to  be  filed,  and  four  weeks'  notice  to  be  pub- 
lished of  its  hearing ;  that  the  petition  and  order 
were  published,  and  that  the  petition  was  there- 
lafter  heard  by  the  Board  of  Supervisors. 

The  Court  said  : 

"  All  the  parties  in  interest  were  brought  before  that  tribunal 
(the  Board  of  Supervisors)  by  a  proper  notice." 

The  following  additional  cases  are  also  directly 

in  point  ;   but,  I  do  not  deem   it    necessary    to   do 

more  than  to  refer  to  them  : 

Gilmore  vs.  Hentig,  ■;i^'}^  Kas. 

Rockwell  vs.  N earing,  35  N.  Y.,  317. 

Wilson.v~>.  Hathaway,  42  Iowa,  173. 

Mailer  of  Lower  Challiam,  35  N.  J.  L.,  497, 

Slate  vs.  The  Mayor,  31  N.  J.  L.,  360. 

State  vs.  Village,  -t^-]  N.  J.  L.,  65. 

Scott  vs.  Brackctt.  89  Ind.,  413. 

People  vs.  Smith,  21    N.  Y.,  595. 

Potter  vs.  Ames,  43  Cal.,  'j'^.,  79. 

Matter  of  Application  of  Mayor,  99  N.  Y., 

569.  5«i- 
3.      Il  is  objected  next  that  the  notice  provitU;d 
by  the  statute   "  was  not  authorized  to  be  directed 
to   the   property-owners  affected,  either  l)y  name, 


62 

or  bv  the  most  general  reference  to  the  property, 
nor  was  it  required  to  give  any  information  of  any 
assessment  upon  any  property.  It  was  simply  a 
notice  that  the  rqoort  of  the  Board  had  been  filed 
and  was  open  to  inspection." 

To  this  I  answer: 

First. — A  notice  that  the  report,  made  under  a 
general  statute,  of  which  all  persons  are  bound  to 
take  notice,  is  completed,  and  that  it  is  deposited 
at  a  certain  place  for  inspection,  is  the  notice 
usually  given  in  cases  of  this  character.  Where 
the  statute  fixes  the  limits  of  the  district  to  be 
assessed,  it  is  not  necessary  that  such  notice 
should  give  the  names  of  the  parties. 

In  tJie  Application  of  the  Mayor,  99  N.  Y., 
580,  the  Court  of  Appeals  of  New  York  said  : 

"'J'he  objection  specifies  these  grounds  of  complaint  :  That 
no  notice  to  the  land  owner  is  required  before  the  filing  of  the 
report.  *  *  *  Xhe  Statute  itself  condemns  and  appropri- 
ates Jor  the  public  use  the  p?-ecise  latids  selected  by  metes  and  bounds 
so  that  every  owner  affected  had  means  of  knowing  that  his  land 
was  taken.  *  *  *  'phg  Commissioners,  after  making, 
their  report,  are  commanded  to  file  it  in  the  office  of  the  Com- 
missioner of  Public  Works  in  the  City  of  New  York,  at  least 
fourteen  days  before  its  presentation  to  the  Court,  for  the  in- 
spection of  whom  it  may  concern,  and  give  notice  for  ten  days 
by  a  daily  advertisement  in  the  papers  above  described  of  such  de- 
posit, and  of  the  date  at  which  the  motion  for  confirmation  will 
be  made,  and  within  such  ten  days  any  person  interested  may 
file  his  objections  to  the  appraisal  with  the  Commissioners.  * 
*         *  There  is  thus  secured  to  the  land-owner  notice  of  the 

proceedings  agaiiist  hitn.  *  *  *  Notice  by  publi- 
cation we  have  many  times  held  to  be  sufficient,  and  that  the 
Legislature  may  prescribe  the  manner  and  time." 


63 

The  City  of  Ottaiua   vs.   Macy,  20   111.,   413. 

This  was  an  application  by  the  City  Collector 
for  judgment  against  certain  lots,  benefited  by  the 
improvement  of  certain  streets,  for  assessments 
thereon. 

Among  other  objections  interposed  to  the  as- 
sessment, were :  3rd.  That  the  Commissioners 
did  not  give  sufficient  notice  of  the  time  and  place 
of  making  the  assessment,  and  5th,  that  the  City 
Clerk  did  not  give  sufficient  notice  of  the  time 
and  place  of  confirming  the  assessment. 

The  ordinance  relating  to  assessments  for  public 
improvements  provided,  that  Commissioners 
should  be  appointed,  and  (  Sec.  6.)  before  enter- 
ing upon  their  duties,  they  should  give  at  least  six 
days'  notice  in  the  corporation  paper  of  the  time 
and  place  of  making  their  assessment.  The  sec- 
tion then  prescribes  the  form  of  the  notice  and  un- 
der it  the  Commissioners  published  i\\v.  following 
n^Dtice,  which,  in  all  respects,  conformed  to  the  re- 
quireiiK-nts  of  the  statute  :  ' 

"  Public  notics  is  hereby  given  to  all  parties  interested  that 
the  undersigned  Commissioners,  appointed  by  the  City  Council 
to  assess  the  sum  of  $7,666  14,  on  the  real  estate  benefited  hv 
the  gravelling  of  La  Salle  street  from  the  south  side  of  Main 
street  to  the  canal  bridge,  *  *  will  meet  at  A.  i:J's  office 
in  said  city,  on  July  25lh  1857,  at  9  A.  M.,  for  the  purpose  of 
making  such  assessment." 

The  City  Clerk  under  the  j)rovisions  of  sec.  9 
of  the  ordinance  and  of  sec.  6  of  articK-   8    of  the 


64 

City  Charter,  published  the  following  notice  of 
confirmation  of  the  assessment,  when  completed  : 
"  Public  notice  is  hereby  given  to  all  parties  interested  that 
the  Commissioners  appointed  by  the  City  Council  *  *  * 
to  assess  the  sum  of  $7,666  14,  on  the  real  estate  in  tJie  part  of 
the  city  benefited  by  g?'aveling  of  La  Salle  street  fi-om  the  south 
side  of  Main  street  to  the  canal  bridge,  and  paving  and  curbing 
the  gutters  of  the  same,  have  completed  their  assessment,  and 
made  return  of  the  same  to  my  office.  Any  person  wishing  to 
appeal  from  said  assessment,  must  file  their  objections  on  or  be- 
fore August  1 8th,  1857,  at  7  P.  M.,  as  the  City  Council  will  at 
that  time,  at  the  Council  room,  hear  all  objections  to  the  assess- 
ment, and  revise  and  confirm  or  amend  the  same." 

The  Charter  of  the  City  provided  that,  on  re- 
ceiving the  assessment  list  from  the  Commission- 
ers, the  City  Clerk  should  cause  a  notice  to  be 
published  in  one  or  more  of  the  city  newspapers, 
to  all pei^sons  interested  therein,  of  the  completion 
of  the  assessment  and  filing  the  roll.      *  ''' 

"It  is  insisted"  said  the  Court,  "that  this  form  of  notice  to 
all  persons  interested,  as  under  it  a  person  may  be  deprived  of 
his  property,  is  not  sufficiently  special,  and  that  the  notice 
should  contain  either  a  description  of  the  lands  assessed,  or  the 
names  of  the  owners  of  the  property  assessed  ;  that  the  notice 
is  too  general  to  effect  the  object  intended  by  notice.  It  is  a 
sufficient  answer  to  this  objection  to  say  that  it  confirms  to  the 
requirements  of  the  statute  ;  it  is  general  because  the  statute  al- 
lows a  general  notice.  *  *  The  notice  is  also  in  strict 
conformity  with  the  form  adopted  by  the  ordinance  of  the  Com- 
mon Council.  Section  4  of  article  8,  of  the  charter  requires 
the  Commissioners  to  give  six  days  notice  in  one  or  more 
newspapers  published  in  the  city  of  the  time  and  place  of  meet- 
ing  prior   to    making  assessments,    to  all  persons   interested. 

*  *  *  If  a  more  particular  notice  might  have  been 
given  after  the  assessment,  the  Legislature  should  have  so  re- 
quired.    In  their  wisdom,  it  was  not  deemed  necessary,  but  the 


65 

same  phraseology  is  used  in  the  sixth  section,  ( that  relating  to 
notice  of  confimation.)  The  notice  given  contains  a  descrip- 
tion of  the  property  assessed  sufficiently  particular  to  arrest  the 
attention  of  the  owners  of  lots  or  land  in  that  described  locality. 
*  *  *  We  can  see  no  force  in  the  objections  made 
to  rendering  judgment  against  the  lots  assessed." 

Secondly. — It  is  not  necessary  to  describe  in  the 
notice  the  property  affected  where  the  Hmits  of  the 
district  are  defined  by  a  pubhc  statute  of  which 
every  person  must  take  notice. 

It  will  be  observed  that  the  district  in  which 
the  assessment  is  to  be  made — and  in  which  it  can 
alone  be  made — is  clearly  described  and  defined 
by  section  three  of  the  Act.  The  Act  is  a  public 
statute,  of  which  every  person  takes  cognizance.' 
The  limits  of  the  district  to  be  affected  by  the 
improvement  are  distinctly  given  in  the  statute. 
This  is  notice  to  every  land-owner  within  those 
limits  that  his  land  is  affected  by  the  report  of  the 
Commissioners.  As  was  said  by  the  Court  of 
Appeals  of  New  York  in  a  case  already  cited, 
*'  the  statute  itsc-lf  condemns  and  appropriates  for 
the  public  usf-  the  j^recise  lands  selected,  by  metes 
and  bcrjnds,  so  that  ev(;ry  owner  affected  hatl 
means  of  knowinL^  *diat  his  land  was  taken. "^ 

The  notice  prcndded  by  section  seven  amounts, 
th(!r(;fore,  to  a   notification   to  all   property-owners 

•  C.  C.  P.,  S  1898. 

'■•   MaUcr  of  Application  of  Mayor,  99  N.  V.,  5S0. 


66 

ill  that  district  that  their  property  has  been  as- 
sessed, and  that  the  assessment  is  in  the  office  of 
the  assessors,  open  for  inspection. 

This  fact,  at  once,  distinguishes  the  case  from 
Boornian  vs.  Santa  Barbara,  upon  which  the 
plaintiffs  rely.  There,  the  Act  neither  fixed  the 
boundaries  of  an  assessment  district,  nor  authorized 
any  person  to  fix  them.  At  most,  the  notice  given 
amounted  simply  to  a  general  notice  to  the  owners 
of  the  property  to  be  affected.  But,  who  could 
tell  what  property  would  or  would  not,  in  the  judg- 
ment of  the  Commissioners,  be  affected  ?  "  Who 
can  know,"  says  the  Court,  "  that  his  property 
may,  by  the  Commissioners,  be  deemed  to  be  ben- 
efitted by  the  proposed  improvement?"  Of  this 
fact,  neither  the  Act  nor  the  notice  informed  him. 
This  uncertainty  in  the  limits  of  the  assessment 
district  is  the  element  which  vitiates  the  notice. 
The  Court  adds  these  significant  words:  "It  is 
possible,  if  the  Commissioners  were  authorized  to 
fix  the  limits  of  the  assessment  district,  finally  or 
conditionally,  in  the  first  instance,  and  then  to  give 
notice — even  by  publication — to  the  owners  of 
property  within  the  district,  the  process  would  be 
sufficient." 

In  the  case  at  bar  the  limits  of  the  assessment 
district  where  known,  were  fixed  by  law.  Hence, 
a  notice  that  an  assessment  of  that  district,  the 
whole  of  it— an  assessment  made  by  officers  who 


67 

could  assess  that  district  and  none  other — had 
been  made,  was  a  notice  to  every  person  in  that 
district  that  a  "  burden  would  be  imposed  upon 
him  or  his  property." 

Thirdly. — In  cases  of  this  nature,  the  all  but 
universal  practice  is  to  prescribe  that  the  report, 
when  made,  shall  be  left  at  a  designated  place  for 
inspection,  to  give  notice  of  that  fact  by  publica- 
tion, and  to  afford  aggrieved  parties  an  opportunity 
within  a  given  time  to  file  or  make  their  objections 
before  a  revising  Board,  tribunal  or  Court. 


& 


Cal.  Stats,  of   1883,  Ch.  24,  Sees.  6  and  7. 

A  general  Act  in  regard  to  the  improvement  of 
streets,  lanes,  etc.,  and  the  construction  of  sewers 
within  municipalities. 

"The  Superintendent  of  Streets  shall  make  an  assessment  Hst 
of  the  damages  and  benefits,  which  shall  be  known  as  the  as- 
sessment roll. 

"  Said  assessment  roll,  when  completed,  shall  be  by  said 
Superintendent  of  Streets  filed  with  the  City  Clerk. 

"Sec.  7. — Upjn  receiving  said  assessment  roll,  said  City 
Clerk  shill  forthwith  give  notice,  by  publication  for  at  least  five 
days  in  one  or  more  daily  ne.vspapers  published  and  circulated 
in  su-h  city,  or  by  at  least  one  insertion  in  a  wejkly  new.si).iper 
so  published  and  circulated,  that  said  as.sessment  roll  is  on  file 
in  his  office,  thj  date  of  the  filing  of  the  same,  and  that  the 
same  is  open  for  public  inspcctio;-..  The  owners  of  land  in  said 
assessment  district,  whjtlier  nanic.l  or  not  in  said  assessment 
roll,  and  all  other  persons  directly  interested  in  any  property 
affected  by  the  assessments  set  forth  in  said  assessment  roll, 
feeling  aggrieved  by  any  act  or  determination  of  the  said  Coun- 
cil or  said   Superintendent  of  Streets  in  relation  to  said  assess- 


68 

ments  or  assessment  roll,  or  having  or  making  any  objections  to 
the  legality  of  said  assessments  or  assessment  roll,  or  other  act, 
or  determination,  or  proceeding  of  said  Council  or  Superintend- 
ent of  Streets,  shall,  within  ten  days  after  first  publication  of 
such  notice,  appeal  to  said  Council  by  briefly  stating  their  ob- 
jections in  writing  and  filing  the  same  with  the  Clerk  of  said 
Council.  *         *         *         *  Upon  the  hearing  of  such 

appeal  or  appeals,  the  said  City  Council  shall  have  power  to 
approve  and  confirm  said  assessment  roll,  or  to  refer  the  same 
back  to  the  said  Superintendent  of  Streets,  with  directions  to 
alter  or  modify  the  same.  *  *  *  *  a^j^^j  jf  ^.j^g 
Council,  upon  examination,  shall  find  that  the  alterations  and 
modifications  have  been  made  according  to  the  directions  con- 
tained in  the  resolution  of  reference,  the  said  Council  shall 
adopt  and  confirm  the  same." 

Charter  of  the    City  of  Stockton,    (Cal.    Stats., 
1871-2,  p,  608.) 

The  Assessor  shall  prepare  an  assessment  list  of  the  damages 
and  benefits  resulting  from  works  of  local  improvement. 

"  Said  assessment  list,  certified  by  the  Assessor,  shall  be  pre- 
sented to  the  City  Council.  On  a  day  to  be  appointed  by  them, 
of  which  notice  shall  be  advertised  for  one  week  in  some  news- 
paper published  in  said  city,  the  said  City  Council,  or  a  com- 
mittee thereof  for  that  purpose  appointed  or  designated,  shall  sit 
as  a  Board  of  Equalization  on  said  assessment.  The  owners  of 
the  land  assessed,  the  contractor  or  his  assigns,  and  all  persons 
directly  interested  in  said  assessment,  whether  named  therein  or 
not,  feeling  aggrieved  by  any  of  the  acts  or  proceedings  concern- 
ing such  assessment,  or  having  or  making  any  objection  to  the 
correctness  or  legality  of  the  same,  shall  at  such  time  specially 
make  known  the  cause  of  objection  or  complaint.  Said  Board 
may  correct,  alter  or  modify  said  assessment  in  such  manner  as 
to  them  shall  seem  just,  and  may  instruct  and  direct  said  As- 
sessor to  alter  and  correct  said  assessment  or  diagram  in  any 
particular,  and  to  make  a  new  diagram  at  their  option  to  con- 
form to  the  decisions  of  the  Board." 

An   act   to  construct  a  canal    through    Channel 

Street,  (Cal.  Stats.,  187  1-2,  pp.  926,  931.) 


69 

After  providing  that  the  Commissioner  shall  make  an  assess- 
ment of  the  damages  and  benefits  flowing  from  the  construction 
of  the  canal  and  the  taking  of  lands  therefor,  the  Act  provides: 

*'  On  the  completion  of  said  assessment,  the  said  Commission- 
ers shall  cause  to  be  published  for  ten  days,  a  notice  of  the  com- 
pletion of  said  assessment,  and  inviting  all  parties  interested 
therein  to  examine  the  same;  and  for  that  purpose  said  assess- 
ment, maps  and  valuation  shall  be  open  and  exhibited  to  public 
inspection  at  the  office  of  the  said  Commissioners  for  thirty  days 
after  the  first  publication  of  said  notice.  *  *  *  There- 
after they  shall  complete  the  same  in  the  form  of  a  report  and 
schedule,  embracing  the  value  of  the  land  taken  for  public  use, 
and  the  assessment  of  the  amount  of  the  same  as  hereinbefore 
provided,  upon  the  several  parcels  of  land  embraced  within  the 
benefited  district  which  report  shall,  at  the  expiration  of  said 
thirty  days,  be  filed  with  the  Clerk  of  said  County  Court,         * 

*  *  together  with  a  petition  signed  by  at  least  two  of  said 
Commissioners,  praying  for  a  confirmation  of  said  report.  On 
filing  such  petition  and  report  to  said  Court,  the  Judge  thereof 
shall  assign  some  day,  not  more  than  thirty  days  thereafter,  as 
the  time  when  any  objection  to  the  confirmation  of  said  report 
will  be  heard  by  said  Court ;  and  the  Clerk  of  said  Court  shall 
cause  to  be  published  for  ten  days,  in  three  daily  newspapers 
published  in  said  City  and  County,  a  notice  of  filing  said  report 
and  of  the  day  assigned  for  the  hearing  of  any  objections  that 
may  be  made  thereto,  and  any  party  interested  therein  may  at 
any  time  before  the  d.iy  assigned  for  the  hearing  thereof  file  in 
said  County  Court  his  objections,  in  writing  to  the  confimation 
of  the  same,  specifying  with  particularity  his  objections.         * 

*  *  Upon  the  day  assii.^ned  for  a  hearing  of  objections 
thereto,  *  *  *  t}^^.  ^^^^^\  Court  may  hear  the 
allegations  of  the  parties  and  the  proofs  adduced  in  support  of 
the  same,  and  after  duly  considering  the  same  mayconfirm  said 
report,  or  change,  alter,  or  modify  the  same  or  cause  the  .same 
to  be  changed,  altered  or  modified  by  said  Commissioners,  and 
then  confirm  the  same,  as  the  justice  and  law  of  the  ca.se  may 
require." 

An  Act  to  [)rovi(Ie   for  the  opening  and  extend- 


ing  of  Leidcsdorff  Street,  in  San  Francisco.     (Cal. 

Stats.  1875-6,  p.  563): 

"  It  shall  be  the  duty  of  the  Commissioners,  immediately 
upon  the  filing  of  their  report  vAth  the  Clerk  of  the  County 
Court,  to  give  notice,  by  pu!)lication  in  at  least  two  newspapers 
printed  and  published  in  s  lid  city  and  county  for  ten  days,. 
daily,  that  said  report  h  is  been  filed  with  said  Clerk  of  the 
County  Court,  and  that  any  o.vner  of  property  affected  by  said 
report,  feeling  aggrieved  by  or  objecting,  to  said  report,  may  file 
in  said  County  Court  his>  ol)jections,  in  writing,  thereto,  at  any 
time  within  twenty  days  after  the  first  publication  of  said"  no- 
tice. *  *  The  County  Court  shall  take  jurisdiction  of 
all  matters  pertaining  to  said  report  and  objections  thereto,  and 
shall  hear  and  determine  within  thirty  days  after  the  filing 
thereof  all  objections  to  the  same,  *  and  may  make  such  orders 
and  decrees  in  said  matter  as  it  shall  deem  just  and  equitable, 
and  to  that  end  may  hear  testimony  and  pass  upon  all  questions 
arising  in  said  proceedil^gs." 

An  Act  to  authorize  the  City  of  Oakland  to 
construct  a  bridge  across  the  estuary  of  Safi 
Antonio.     (Cal.  Stats.  1875-6,  pp.  653,  655): 

The  Act  provides  that  the  Commissioners  shall  assess  the 
lands  benefited  by  such  construction,  and  then  continues : 

"  Within  thirty  days  after  their  appointment,  *  the  Commis- 
sioners shall  n-vake  a  report  to  the  Council  o(  the  assessments 
so  made  by  them.  *  *  Upon  receiving,  the  report  and 
assessment,  *  the  same  shall  be  filed  with  the  City  Clerk,  and 
the  Council  shall  forthwith  give  notice,  by  publication  for  at 
least  five  days,  *  that  said  rqjort  and  assessment  are  on  file  in 
the  Clerk's  ofiice,  the  date  of  filing,  and  that  they  are  open  for 
public  inspection.  The  owners,  whether .  named  in  the  assess- 
ment or  not,  the  contractor,  or  his  assigns,  and  all  other  persons 
directly  interested  in  the  said  report  and  assessment,  feeling 
aggrieved  by  any  act  or  determination  of  the  Commissioners  in 
relation  thereto,  or  having  or  making  any  objection  to  the  legality 
of  the  assessment,  or  other  act  or  determination  or  proceeding 


71 

of  the  Commissioners  shall,  within  twenty  days,  *  appeal  to 
the  City  Council.  *  *  Upon  such  appeal  the  said  City 
Council  shall  have  power  to  approve  and  confirm  said  report 
and  assessment,  or  refer  the  same  back  to  the  Commissioners, 
with  directions  to  alter  or  modify  the  same.  *  *  And  if 
the  Council,  upon  examination,  shall  find  that  the  alterations 
and  modifications  have  been  made,  *  the  said  Council  shall,  by 
ordinance,  adopt  and  confirm  the  same." 

An  Act  to  open,  etc.,  Fifteenth  Avenue  Exten- 
sion, in  San  Francisco.  (Cal.  Stats.  1875-6,  pp. 
762,  765): 

The  Commissioners  shall  prepare  an  assessment  and  report 
of  the  damages  and  benefits. 

"Such  report,  as  soon  as  the  same  is  completed,  shall  be 
left  at  the  office  of  said  Board,  daily,  from  8  o'clock  A.  M. 
until  5  o'clock  P.  M.,  for  thirty  days,  for  the  free  inspection 
of  all  parties  interested,  and  notice  that  the  same  is  so  open 
for  inspection  for  such  time  and  at  such  place  shall  be  pub- 
lished by  said  Board,  daily,  for  ten  days,  in  two  daily  news- 
papers printed  and  published  in  said  city  and  county;  provided^ 
that  notice,  in  writing,  of  such  assessment  shall  be  sent  through 
the  Post  Office  to  each  of  said  owners,  so  far  as  the  same  can 
be  ascertained.  *  *  *  Any  person  feeling  dissatisfied  with 
the  determination  of  said  Board  of  Commissioners  as  to  the 
value  of  the  amount  of  damage  to,  or  the  assessments  upon,  lands 
or  jjroperty  owned,  claimed  or  occupied  by  him,  shown  in  the 
report  provided  for  in  the  last  preceding  section,  may  have  a 
summary  hearing  thereupon  before  said  Board,  in  person  or 
through  counsel,  at  any  time  before  the  filing  of  .said  report. 
*  *  *  At  the  expiration  of  the  time  allowed  for  such  hear- 
ing *  *  *  said  P>oard  shall  proceed  to  review  its  said 
report,  and,  if  necessary,  correct  or  modify  the  same;  and  when 
such  revision  is  completed,  shall  file  its  said  rejiort  as  revised, 
together  with  a  maj)  of  said  l-ifteenth  Avenue  Extension  and 
the  land  assessed,  in  the  Clerk's  office  of  the  County  Court  of 
said  city  and  county,  with  a  jietilion,  signed  by  .said  Board,  or 
a  majority  thereof,  for  the  confirmation  of  said  report.    *    *    * 


72 

Notice  of  the  filing  of  said  report  and  map,  and  the  petition 
for  the  confirmation  of  said  report,  and  of  the  time  and  place 
appointed  for  the  hearing  of  said  petition,  shall  then  be  given, 
by  publication  thereof,  daily,  at  least  ten  days  before  said  hear- 
ing, in  two  daily  newspapers  in  said  city  and  county.  *  *  * 
On  the  day  appointed  for  the  hearing  of  said  petition  *  *  * 
all  persons  interested  may  be  heard  tefore  said  Court  in  relation 
to  any  of  the  matters  contained  in  the  report,  and  the  Court, 
after  hearing  the  allegations  and  proof  of  all  persons  interested, 
and  ascertaining  to  its  satisfaction  that  notice  of  such  hearing 
has  been  duly  given,  may  confirm,  set  aside,  or  modify  said 
report,  and,  if  necessary,  refer  the  same  back  for  revision  and 
correction  to  said  Board." 

An  Act  to  open  Sixth  Street  in  San  Francisco, 
{Cal.  Stats.  1875-6,  pp.  866,  873,  876-7,)  makes 
the  same  provisions  in  regard  to  the  fihng  of  the 
report  and  notice  thereof,  and  the  subsequent 
hearing,  as  in  the  case  of  the  Fifteenth  Avenue 
extension. 

An  Act  to  provide  for  the  opening  and  widening 
of  streets  in  San  Jose,  (Cal.  Stats.  1877-8,  p.  621.) 

Sec.  6.  The  Commissioners  of  estimate  and  assessment 
"  shall  make  their  report  in  writing,  within  sixty  days  after  their 
appointment  and  file  it  in  the  office  of  the  City  Clerk.  *  * 
On  filing  such  report  the  City  Clerk  shall  give  notice  thereof 
for  ten  days  in  some  newspaper  published  in  said  city." 

It  shall  be  the  duty  of  the  Mayor  thereupon,  to  appoint  a 
committee  of  reference  "  which  committee  shall  hear  any  ob- 
jections to  the  confirmation  of  said  report  upon  a  day  to  be  ap- 
pointed by  them,  *  such  committee  shall  hear  the  allegations 
of  the  parties  interested  who  may  appear  before  them,  *  and 
shall  recommend  the  confirmation  or  rejection  of  said  report. 
The  Mayor  and  Council  may  thereupon  confirm  the  report,"  or 
may  set  it  aside,  or  refer  it  back  to  the  Commissioners. 


72> 

An  Act  to  provide  for  the  opening  of  Tehama 
Street  in  San  Francisco,  (  Cal.  Stats.,  1877-8  pp, 
802,  806,)  provides  : 

That  the  Commissioners  shall  prepare  a  report,  which  as  soon 
as  completed,  shall  be  left  at  the  office  of  said  board  *  for  thirty 
days  for  the  free  inspection  of  all  parties  interested,  and  notice 
that  the  same  is  so  open  for  inspection  shall  be  published  by 
the  board  daily  for  ten  days,  in  two  newspapers  of  San  Francis- 
co, *  and  written  notices  thereof  shall  likewise  be  mailed 
to  all  known  owners  and  persons  affected. 

Any  person  feeling  dissatisfied  with  the  determination  of 
the  Commissioners  as  to  damages  or  benefits  might  have  a 
summary  hearing  before  the  board;  that  the  board  should  re- 
view and  if  necessary,  correct  its  report,  and  file  the  revised 
report  and  a  map  in  the  office  of  Clerk  of  the  County  Court, 
together  with  a  petition  for  confirmation.  That  upon  the  filing 
of  the  report  and  map,  the  County  Court  should  take  jurisdic- 
tion of  the  proceedings,  and  that  notice  of  such  filing  and  of  a 
time  for  a  hearing  appended  by  the  Court,  should  be  given  by 
publication.  That  thereafter  on  the  designated  day,  the  Court 
should  hear  the  allegations  and  proofs  of  the  parties  aggrieved, 
and  thereupon,  set  aside,  refer  back  or  confirm  the  report. 

An  Act  to  establish  Montgomery  .Street  south, 
(New  Montgomery,)  in  the  City  of  San  Francisco, 
(Cal.  Stats.  1877  8,   p.   933.) 

The  report  of  the  Commissioners  for  the  assessment  of  dam- 
ages and  benefits  resulting  from  the  opening  of  the  streets, 
shall,  "  when  completed,  l)e  filed  in  the  County  Court,  and 
notice  of  such  filing  be  published  for  five  days  *  in  two 
daily  newspapers.  *  Within  twenty  days  after  the  filing  of 
such  rei>ort,  written  objections  thereto,  to  any  matter  contained 
theicin  *  may  be  filed  in  .said  office  on  the  j)art  of  any 
owner  or  party  interested  in  i>roperly  to  be  taken  or  injured  by 
the  said  improvement,  or  assessed  for  benefits  arising  there- 
from." 

On  a  day  to  be  apj)f;intcd  Ijy  the  Court,  it  "shall  proceed  to 


74 

a  hearing  upon  said  report  and  objections,  and  take  proofs  in 
relation  thereto,  and  "  may  confirm,  modify  or  reject  said  report 
wholly  or  in  part,"  or  refer  it  back  to  the  Commissioners. 

By  Sec.  13  and  14  of  the  same  Act,  provision  is  made  for 
the  filing  of  a  report  o{  costs  and  benefits,  in  which  precisely  the 
same  procedure  obtains  as  with  the  report  of  damages. 

An  Act  to  establish  the  Sacramento  River 
Drainage  District,  (  Cal.   Stats.    1^77-^,  pp.   987, 

99i-) 

The  Commissioners  shall  appraise  the  damages  and  benefits 
resulting  from  the  construction  of  certain  canals,  and  prepare 
lists  of  the  same. 

"  Upon  the  completion  of  said  lists,  said  Commissioners  of 
assessment  shall  publish,  in  at  least  one  newspaper,  *  for 
not  less  than  two  weeks,  a  notice  stating  that  said  lists  have 
been  prepared,  and  that  said  Commissioners  of  Assessment  will 
sit  *  for  the  purpose  of  hearing  and  determining  any  ob- 
jections that  may  be  made  to  said  assessment.  *  * 
During  such  sittings,  any  person  interested  may  appear  *  *  * 
and  state  bis  objections  to  the  assessment,  *  and  upon 
such  hearing,  any  assessment  found  to  be  erroneous  shall  be 
corrected." 

The  Act  to  authorize  the  Supervisors  of  San 
Francisco  to  change  the  grades  of  certain  streets, 
(Cal.  Stats.  1 867-8,  p.  594,)  under  which  the  Sec- 
ond Street  cut  improvement  was  made,  provides 
that — 

The  Commissioners,  after  preparing  a  report  of  the  costs 
and  benefits,  shall  "subscribe  the  same  and  file  it  in  the 
oflfice  of  the  Clerk  of  the  Board  of  Supervisors,"  and  that, 
"  on  filing  such  report,  the  Clerk  of  the  Board  of  Supervisors, 
shall  give  notice  thereof  for  five  days,  by  publication." 

The  machinery  prescribed  after  the  filing  of  the 

report  for  its  review  and  confirmation  is  the  same 


75 

as  that  provided  for  in  the  Act  relating  to  streets 
in  San  Jose. 

Nor  is  the  above  a  procedure  which  has  pre- 
vailed here  only  in  latter  years.  We  find  it  fol- 
lowed as  far  back  as  1862,  if  not  earlier. 

An  Act  concerning  the  construction  and  repair 
of  levees  in  the  County  of  Sacramento  (Cal.  Stats. 
1862,  pp.  1 51-155)  provides  that — 

The  Assessor  shall  estimate  the  benefits  arising  from  the 
reclamation  improvements  contemplated  by  that  Act,  and 
assess  them  to  the  lands  benefitted,  and  "as  soon  as  such 
assessment  is  completed,  shall  deliver  it  to  the  Auditor,  who 
shall  forthwith  give  notice,  by  publication  in  each  paper  pub- 
lished in  the  city,  that  the  special  levee  assessment  roll  has  been 
completed,  and  is  in  his  possession,  open  for  examination,  and 
that  the  Board  of  Equalization  will,  upon  a  day  *  named  * 
meet  to  hear  and  determine  complaints  in  regard  to  valuation 
and  assessments  therein.  *  Upon  the  day  specified  *  the 
Board  *  shall  meet  *  *  to  hear  and  determine  such  ob- 
jections to  the  assessments  and  valuations  as  may  come  before 
them  ;  and  the  Board  may  change  the  valuation  as  may  be 
just." 

The  Charter  of  New  York  City  (N.  V.  Laws 
18 1  3,  Ch.  87,)  [provides: 

The  Mayor,  Aldermen  and  Commonalty  may,  when  they 
deem  the  laying  out  or  opening  of  a  street,  or  any  part  thereto, 
necessary  or  useful,  order  said  opening  or  laying  out  to  be 
made. 

2.  Whenever  lands  shall  be  deemed  rec|uired  for  such 
opening  and  laying  out,  the  Supreme  Court,  on  the  ajjplication 
of  the  Mayor  and  Commonalty,  shall  have  the  power  to  appoint 
three  commissioners  of  estimate  and  appraisement,  who,  after 
being  sworn,  shall  view  the  premises  recjuired  for  the  taking,  and 
shall  prepare  a  report  showing  the  relative  aggregate  amount  of 


76 

damages  and  benefits  that  will  accrue  from  the  opening,  also 
the  names  of  the  different  owners,  with  the  description  of  their 
property,  and  the  amount  of  damage  or  benefit  which  each  is 
deemed  to  sustain  by  the  improvement. 

The  Commissioners,  after  completing  their  estimate  and  assess- 
ment, and  at  least  fourteen  days  before  they  make  their  report  to 
the  Court,  shall  deposit  a  copy  or  transcript  of  the  estimate  or  as- 
sessment in  the  Clerk's  office  of  Ne7v  York  City,  for  the  inspection 
of  whom  it  may  concern,  and  shall  give  notice  by  advertisement  to 
be  published  in  tzvo  of  the  public  city  neivspapers,  of  the  deposit 
thereof  in  the  said  office,  and  of  the  day  on  which  their  report 
will  be  presented  to  the  Court,  Any  person  objecting  to  the  re- 
port may  state  his  objections  in  writing  to  the  Commissioners 
within  ten  days  after  first  publication,  and  in  case  of  such  ob- 
jections, the  Commissioners  shall  reconsider  their  assessment, 
or  the  parts  objected  to,  and  in  case  the  same  shall  appear  to 
them  to  require  correction,  but  not  otherwise,  they  shall  and 
may  correct  the  same  accordingly. 

The  Commissioners  shall  report  to  the  Supreme  Court,  unthout 
unnecessary  delay,  and  on  the  coming  on  of  their  signed  report, 
said  Court  shah,  after  hearing  any  matter  that  may  be  alleged 
against  it,  confir/n  the  report,  or  refer  it  back  to  the  same  or  new 
Commissioners  for  7'evisal  or  correction,  and  has  power  to  re-refer 
until  a  7-eport  is  returned  which  the  Court  will  finally  confirm. 
The  report,  when  cotifirmed,  shall  be  conclusive  on  all  parties. 

The  above  are  the  only  provisions  made  by  the 
charter  in  regard  to  notice  or  a  hearing  of  the 
parties  affected  at  any  stage  of  the  proceedings. 

The  provisions  of  this  Act  have  been  adopted 
in  most,  if  not  in  all  the  important  street  improve- 
ments in  New  York  City,  the  statutes  author- 
izing and  setting  on  foot  those  improvements,  ex- 
pressly adopting  the  machinery  provided  by  the 
existing  law  for  the  appraisement  and  confirmation 
of  the  assessment  of  damages  and  benefits.     The 


11 

law  of  1813  was  in  force  at  the  time  of  the  pass- 
age of  all  the  statutes  referred  to.  As  examples 
see — 

The  Widening  of  Broadway,  N.  Y.  Laws  of 

1871,  Ch.  57,  Sec.  4; 

Matter  of  Widening  Broadway,  61  Barb.,  484; 

Act  to  Reorganize  the  Government  of  N.  Y. 

City,  N.  Y.  Laws  1873,  Ch.  335,  Sec.  105; 

Act  for  Laying  Out   and    Improving  Certain 

Portions  of  N.  Y.  City,  N.  Y.  Laws   1865, 

Ch.  565,  Sec.  4; 

Act  Relating  to  Central  Park  Commissioners, 

N.  Y.  Laws  1866,  Ch.  367; 
Also,  N.  Y.  Laws  1870,  Ch.  t^Z-^,  Sec.  5. 

Charter  of  Rush  City,  (Minn.  Spec.  Laws,  1S78, 
Ch.  24,  Sub.  Ch.  6,  p.  101.) 

After  providing  that  the  Common  Council  shall 

have  the  care  and  control  of  streets,  etc.,  and  may 

alter,  open,   widen,    improve    and    straighten    the 

same,  and  may  appoint  Commissioners  to  view  the 

premises  affected  and  assess  the  damages,  and  that 

said    Commissioners   shall   file  their   report  to  the 

Common  Council    with   the   Recorder,  the   statute 

continues: 

''Upon  such  report  being  filed  in  the  ojjlce  oj  the  Recorder^  " ^ 
said  Recorder  shall  give  at  least  ten  dayf  notice,  by  publication 
in  the  official  paper,  *  to  the  effect  tliat  said  asecssmcnt  has  been 
returned,  and  that  the  same  will  be  confirmed  by  the  Common 
Council  at  a  meeting  to  be  named  in  said  notice,  unless  objec- 
tions are  tnadc,  in  writing,  by  persons  interested  in  any  land 


7^ 

required  to  be  taken  *  *  The  Commoti  Coimcil,  on  the  day 
fixed  for  the  hearing  of  such  report,  or  at  such  subsequent 
meeting  to  which  the  same  may  stand  over,  shall  have  power, 
in  their  discretion,  to  confirm,  reverse  or  anfiul  the  assessment, 
giving  due  consideration  to  any  objections  interposed  by  any 
of  the  parties  interested," 

The  Amended  Charter  of  the  City  of  Brook- 
lyn, (N.  Y.  Laws  of  1854,  Ch.  384,  title  4.) 

After  providing  that  the  Common  Council  has  control  over  the 
opening,  widening  and  improvement  of  streets,,  etc.,  and  that 
such  proceedings  shall  be  inaugurated  by  petition  by  a  majority 
of  the  land  owners  along  the  line  of  improvement,  and  that 
notice  thereof  shall  be  published  in  the  city  newspapers,  fixing 
a  time  for  the  hearing  of  the  application,  and  if  said  Council 
|)ass  favorably  on  it,  they  shall  petition  the  County  or  Supreme 
Court  to  appoint  Commissioners  of  estimate  and  assessment^ 
who  shall  proceed  to  assess  the  damages  and  benefits  and  pre- 
pare a  report  thereof,  the  statute  continues : 

'''■After  their  report  shall  be  completed^  it  shall  be  by  them  filed 
in  the  office  of  the  Clerk  of  the  Coutity  of  Kings.  They  shall  then 
cause  a  jiotice  to  be  published  that  tJu  same  has  been  completed 
and  filed,  and  that  they  will  meet  at  a  time  and  place  specified, 
not  less  than  10  days  from  the  first  publication,  to  review  their 
report.  Duri?ig  that  time  the  report  may  be  examined  by  all 
the  parties  interested,  and  at  the  time  and  place  specified  any 
person  may  offer  objections,  in  writing,  to  the  said  report.  After 
reviewing  and  correcting  their  report,  wherever  necessary,  they 
shall  file  it  with  the  Clerk  of  said  county.  77^1?  Council  shall 
then  cause  notice  to  be  published,  in  the  corporation  newspapers, 
that  the  report  has  been  completed  and  filed,  and  that  applica- 
tion will  be  made  at  a  time  specified,  in  behalf  of  said  Council^ 
to  the  County  Court,  or  a  special  term  of  the  Supretne  Court, 
to  confirm  the  report,  said  notice  not  to  be  less  thatt  ten  days, 
during  which  titne  the  report  shall  remain  open  to  the  inspec- 
tion of  persons  interested,  and,  if  aggrieved,  they  may  appeal, 
7viihin  the  said  ten  days,  to  the  Supreme  Court."  The  Appellate 
Court  is  given  the  power  to  refer  the  report  back  to  the  Com^ 


79 

missioners  for  correction,  and,  when  corrected,  the  same  notice 
shall  be  published  of  application  to  confirm  as  with  the  original 
report,  or  the  Court  may  confirm  it  or  set  it  aside.  (Sees.  1 2 
and  13). 

Like  provisions  are  made  and  like  notice  by 
publication  prescribed  in  proceedings  for  grading 
and  paving  streets.      (Sees.  22-25). 

Act  to  amend  Charter  of  Newark,  (N.  J.,  Laws 
of  1857,  Cli.  52,  Title  7,  pages  168  et.  seq.) 

The  Common  Council  may  appoint  five  freeholders  to  assess 
the  benefits  and  costs  of  laying  out,  improving,  widening  streets, 
etc.  They  shall  make  an  assessment,  and  file  a  report  in  writing 
in  the  office  of  the  City  Clerk.  Before  signing  and  completmg  the 
same,  they  shall  give  notice  by  10  days  piiblicatioii  in  certain 
neivspapers  of  such  depositing,  to  the  parties  interested,  and  also 
of  the  time  and  place,  when  their  objections  thereto  will  be  heard. 

On  signing  and  completing  the  report,  the  Commissioners 
shall  return  the  same  to  the  Common  Council,  with  any  objec- 
tions in  writing  thereto  that  may  have  been  presented  to  them. 

If  any  objections  are  so  returned,  the  Council  shall  publish  a 
notice  in  two  newspapers  to  the  parties  interested  for  10  con- 
secutive days  of  time  and  place,  when  and  where  they  will  hear 
the  report  and  the  objections,  or  may  correct  and  modify  the 
same,  etc. 

Charter  of  the  City  of  Lockport,  (N.  Y.,  Laws 
of  1873,  title  387,  p.  605.) 

If  the  Common  Council  determines  to  alter,  lay  out,  widen  or 
straighten  streets,  it  shall  pass  an  ordinance,  and  give  notice  by 
publication  in  three  successive  numbers  of  the  City  paper,  of 
their  intention  to  take  land  'for  the  proposed  improvement,  and 
of  an  api^lication  to  the  Supreme  Court  for  the  a[)])oinlmcnt  of 
Commissioners  of  estimate  and  assessment. 

Upon  the  day  designated  in  the  notice  the  Court  will  appoint 
Commissioners.     The  Charter  then  ( (jntinues  : 

.§  9.  '■'■The  Common  Council  after  the  report  of  the  Commis- 
niissioners  is    returned,   shall  ^ive  notice  by  publishing  in  three 


8o 

successive  numbers  of  the  City  paper  that  the  same  will  on  a  day 
specified  be  confirmed,  unless  objections  to  the  confirtnation  thereof 
shall  before  that  time  be  filed  with  the  Clerk,  or  if  no  objections 
be  filed  the  report  shall,  in  their  discretion,  be  confirmed  by  the 
Council"  If  objections  are  made,  any  person  interested  may  be 
heard  before  the  Council  on  a  day  it  may  appoint,  and  the 
Council  may  confirm  or  annul  the  report,  or  send  it  back  for 
correction. 

Charter  of  Passaic,  (N.  J.  Laws,  1871,  Ch.  259, 
p,  632,  et.  seq.) 

The  Common  Council  shall  appoint  three  Commissioners  of 
estimate  and  appraisement,  for  the  laying  out  or  widening  of  a 
street,  etc. 

They  shall  determine  what  lands  are  benefited,  and  assess  the 
damages  and  benefits,  causing  a  map  and  survey  to  be  made, 
and  making  a  report,  showing  the  names  of  the  owners,  with 
the  amounts  assessed  to  each,  according  to  the  degree  in  which 
he  is  benefited. 

Sec.  20. — All  expenses  and  costs  of  proceedings  for  improv-a 
ments  in  laying  out,  altering  and  widening  streets  shall  be 
assessed  by  the  three  Commissioners  appointed  as  aforesaid,  and 
they  shall  report  to  the  Common  Council  what  proportion  shall 
be  assessed  on  each  lot  of  land,  accompanying  the  report  with  a 
maji  showing  the  lots  assessed,  *  and  7ohich  report  and  map  shall 
be  filed  in  the  office  of  the  village  Clerk,  and  he  shall  cause  a 
printed  notice  of  the  filing  to  be  set  up  in  five  public  places  near 
the  improvement,  and  that  the  board  will  meet  at  a  time  and  place 
specified  not  less  than  20  days  thereafter  to  consider  the  said 
assess?nent,  and  hear  all  object iojis  thereto  in  7vriting.  Any  assess- 
ment may  be  reviewed  and  set  aside  on  certiorari  by  the  Supreme 
Court. 

Charter  of  the  City  of  Chicago.  (Act  of  March 
4,  1837;   2  111.,  Laws  of  1837,  p.  50,  61  et  seq.) 

Sec.  38. — The  Common  Council  has  power  to  lay  out,  widen 
and  alter  streets,  &c.  Whenever  a  street  is  laid  out,  or 
widened,  *  the  Council  shall  give  notice  by  publication  to  owners 
of  land  of  their  intention  to  take  their  property,  informing  them 


they  may  file  a  claim  for  damages  within  a  specified  time;  if 
such  owners  file  claims  in  that  time,  the  Council  shall  choose 
Commissioners  to  assess  the  damages  and  benefits.  The  Com- 
missioners shall  view  the  premises  and  may  in  their  discretion 
hear  evidence.  They  shall  give  notice  by  publication  of  the 
time  and  place  of  their  meeting  to  make  the  assessment  They 
shall  then  make  the  assessment,  and  shall  return  their  report  in 
wTiting  to  the  Common  Council  within  30  days  after  their  appoint- 
ment. TJu  Council  shall  give  two  weeks  tiotice  in  newspapers 
that  on  a  day  specified  the  report  will  be  confirmed,  unless  object, 
ions  in  t/ie  mea/iwhile  be  filed.  If  objections  are  filed,  the  owner 
may  be  heard  before  the  Council,  and  the  Council  may  confirm 
or  annul  the  report,  (and  must  confirm  it  if  no  objection  is 
made),  or  may  refer  it  back  for  correction. 

The  Charter  as  amended  in  1851,  contains  sub- 
stantially the  same  provisions. — (111.  Priv.  Acts 
of  1 851,  p.  151  et  seq.)  The  notice  on  the  filing 
of  the  report  is  much  the  same  as  the  notice  pro- 
vided here. 

Sec.  r  i. — "  The  clerk  shallgive  10  days  notice,  in  the  corporation 
paper  that  the  assessment  has  been  returned  and  on  a  day  specified 
7uill  be  confirmed,  unless  objections  to  the  same  are  made  by  the 
parties  interested." 

And,  as  still  further  amended  in  1869.,  (111. 
Priv.  Laws  1869,  p.  349),  it  provides: 

"  When  the  assessors  shall  have  completed  their  assessment 
*  it  shall  be  signed  by  the  assessors  and  returned  to  the 
Circuit  Court,  and  shall  be  filed  by  the  clerk  thereof  The  as- 
sessors shall  thereupon  give  at  least  ten  days  notice  in  three  * 
daily  newspapers,  and  by  posting  *  of  the  filing  of  said  assess- 
ment roll,  and  that  they  will  on  a  day  therein  named,  api>ly  to 
the  Circuit  Court  for  confirmation  of  the  same."— whereupon 
the  Court  shall  hear  the  parties  and  has  power  to  confirm, 
modify  and  set  aside  the  rcjjort. 

Charter  of  Bergen,  New  Jersey.  (N.  J.  Laws 
of  1864,  Ch.  264,  Sec.  31,  p.  418.) 


82 

"The  Commissioners  shall  determine  and  report  in  writing  to 
the  Board  of  Councilmen  what  proportion  of  the  expense  (of  open- 
ing, widening,  altering  and  improving  streets)  shall  be  assessed  to 
each  separate  lot  or  parcel  of  land,  which  report      *      shall  be 

filed  in  the  office  of  the  Clerk  of  the  town,  zvhereupon  said  Clerk 
shall  cause  to  be  published         *        for  20  days  a  notice  of  the 

filing  of  the  report,  and  that  the  Coimcilmen  will  meet  (at  a  time 
and  place  desigtiated)  to  consider  said  assessment  and  to  receive 
and  consider  all  objections  thereto  which  may  be  presented  in 
writing r 

Analogous  provisions  are  made  for  the  case  of 
grading  and  curbing  assessments,  by  Sec.  32  of 
the  same  Act. 

Charter  of  Rochester.  (N.  Y.  Laws  1867,. 
Ch.  143.) 

The  assessors  for  assessing  the  benefits  and  damages  result- 
ing from  a  public  improvement  not  involving  the  taking  of 
lands,  shall  return  their  assessment  when  made  to  the  Common 
Council,  who  "shall  appoint  a  time  at  which  they  will  hear  ap- 
peals from  said  assessment.  *  Upon  mch  return  being  made 
and  filed  the  Clerk  of  the  City  shall  cause  ?iotice  of  the  same  be- 
ing returned  to  his  office  to  be  published  *  for  *  ten  days, 
and  that  t/ie  Common  Council  will  on  the  day  appointed  proceed 
to  hear  appeals.  At  the  day  appointed  *  they  shall  hear 
the  allegations  and  proofs  of  all  persons  who  may  complain  of 
such  assessments,"  and  may  then  set  aside,  or  correct,  or  con- 
firm the  same. 

Charter  of  Paterson.  (N.   J.    Laws    1861,    Ch. 

121.) 

The  Commissioners  appointed  in  proceedings  for  opening, 
streets,  &c.,  shall  make  an  assessment  of  the  damages  and  ben- 
efits, giving  all  the  usual  particulars,  and  ^'■shall  file  their  report 
and  map  with  the  City  Clerk  in  go  days  after  their  appointme7itj 
and  thereupon  t/ie  City  Clerk  shall  give  notice  of  the  filing  of  such 
report  and  map     *     in  one  or  more  of  the  city  papers,  for  two^ 


83 

tceeks."  If  two-thirds  of  the  persons  affected  i>rotest  \Tithin  a 
designated  time  thereafter,  the  improv-ement  shall  be  discon- 
tinued; but  if  there  is  no  such  protest,  the  work  shall  be  car- 
ried on,,  and  if  any  ozcnier,  zifho  has  remonstrated,  is  dissatisfied 
with  t/ie  assessment,  fie  tnay  appeal  to  tJie  Supreme  Court,  witliin 
a  specified  time,  and  in  case  of  such  appeal,  Commissioners  shall 
be  appointed,  who  shall  review  the  assessment,  and  their  report 
thereon  shall  be  final. 

Charter  of  Jersey  City  (N.  J.  Laws  of  1S51,  pp. 
392,  416,  Sec.  55,)  is  identical  in  language  with 
the  Charter  of  Paterson. 

Charter  of  Buffalo  (N.  Y.  Laws  of  1853,  Ch. 
530,  p.  499). 

The  Commissioners  appointed  to  assess  the  damages  in  pro- 
ceedings for  opening  and  laying  out  streets,  &:c.,  shall  return 
their  report  to  the  Common  Council  within  30  days  after  their 
appointment. 

"  The  Common  Council,  after  the  report  of  the  Commissioiwrs 
is  returned  to  them,  shall  give  notice  by  publishing  the  same  in 
ten  successive  numbers  of  the  city  paper  that  the  same  will  on  a 
day  *  specified  *  be  confirmed  unless  objections  to  the  con- 
firmation tliereof  be  *  filed  with  the  Clerk."  If  objections 
are  filed,  any  person  interested  may  be  heard  before  the  Coun- 
cil, and  the  report  shall  l^e  corrected,  annulled  or  confirmed 

Charter   of    Albany    (N.     Y.     Laws    of    1S70, 

Ch.  -]-],  Title  VIII). 

The  Board  of  Contract  and  apijortionnient,  whose  office  i.s 
fixed  at  a  designated  place,  shall  assess  expenses  and  benefits  of 
street  and  similar  improvements.  When  their  "a|»i)orti()nincnt" 
is  completed  "  the  Common  Council  shall  cause  public  notice 
of  such  apportionment  t-j  be  j^ivcn  in  three  *  nc7C'spa/>ers  * 
for  JO  davs,  during  which  time  the  said  assessment  and  appor- 
tionment shall  be  open  for  examination  by  any  person  interested, 
and  on  the  application  in  writing  of  any  person  aggria'cd,  said 
Board  may  review  and  correct  said  apportionment,"  and  there 


84 

after,  n])on  confirmation  by  the  Council,  it  shall  be  binding  and 
conclusive. 

Charter  of  Utica  (N.  Y.  Laws  of  1862.  Ch. 
18,  Sees.  92  and  93). 

The  Commissioners  in  improvement  proceedings  shall  make 
their  report  of  the  assessment  of  damages  and  benefits,  and  re 
turn  it  to  the  common  Council,  and  it  shall  be  filed  in  the  office 
of  the  City  Clerk. 

"  On  the  coming  in  of  said  report,  the  Common  Council  shall 
cavse  to  be  published  *  a  daily  fwfice  *  that  at  a  time  there- 
in fixed  *  it  7ttill  act  on  the  same,  and  diiri?ig  which  time 
the  report  will  be  left  at  the  office  of  the  City  Clerk,  where  all 
persons  interested  may  examine  the  same,  and  that  unless  objec- 
tions are  fled  by  some  persons  interested  the  report  will  be  con- 
firmed. *  *  If  objections  are  made  *  any 
person  interested  may  be  heard  before  the  Common  Council 
touching  the  matter,"  and  the  Court  may  order  a  re-reference  or 
confirm,  correct  or  annul  the  report. 

The  Ohio  Act  relating  to  the  formation  and 
government  of  Municipal  Corporations,  a  statute 
of  general  operation  throughout  the  State,  and 
known  as  the  "  Municipal  Code,"  (66  Ohio  Laws 
1869,  pp.  145,  248),  provides  : 

The  assessment  of  benefits  upon  the  lands  affected  '•^  shall  be 
filed  in  the  office  of  the  Clerk  of  the  Corporation  for  public  inspection. 
Before  adopting  the  assessment  *  the  Council  shall  publish 
notice  for  three  weeks  consecutively,  *  that  such  assessment 
has  been  tnade,  and  that  the  same  is  on  file  in  the  office  of  the 
Clerk  for  the  inspection  and  examination  of  any  person  inter- 
ested therein."  Any  person  objecting  thereto  shall  file 
his  objections  within  two  weeks  after  such  publication,  and  the 
Council  shall  then  appoint  three  freeholders  as  a  Board  of 
Equalization,  who  shall  review  and  hear  evidence  on  and 
equalize  the  assessment,  and  report  it  to  the  Council,  who  shall 
then  have  power  to  annul,  confirm  or  modify  the  same. 


85 

Charter  of  Detroit  (Mich.  Laws  of  1857,  No. 
55.  P-  123). 

Provides  that  the  assessing  jury  shall  file  a  report  in  the  Clerk's 
office  of  the  Recorder's  Court,  and  that  the  City  Attorney  shall 
give  notice  by  publication  that  the  Court  will  hear  objections  to 
its  confirmation  at  a  time  specified,  and  that  thereupon  it  may 
be  confirmed,  &c. 

An  Act  in  relation  to  construction  of  drains, 
dikes  and  levees.  (Indiana  Laws  of  1869,  p.  84, 
Ch.  3S.) 

The  appraisers  shall  return  their  schedule  and  assessment  to 
the  Secretary  of  the  Drainage  Company,  "  who  shall  cause  it  to 
be  filed  for  record  in  the  office  of  the  Recorder  of  the  County.  * 
Upon  filing  such  schedule  for  record  the  Secretary  shall  give 
notice  thereof  by  posting,  *  and  any  party  aggrieved  by  any 
such  assessment  may,  within  thirty  days  thereafter,  appeal  to  the 
"Circuit  or   Cotntnon  Fleas  Court. " 

The  above  Is  a  statute  of  general  operation  in 
Indiana. 

An  Act  relating  to  drains,  ditches  and    levees, 

approved    May   29th,    1879.      (111.  Laws  of  1879. 

Cited  in  Blake  vs.  The  People,  109  111.) 

The  Commissioners  shall  make  an  ajjpraisement  of  the  bene- 
fits and  costs  resulting  from  the  improvement,  and  file  it  with 
the  Clerk  of  the  Court  ^ippointing  them.  Upon  being  filed 
with  such  Clerk  he  shall  give  three  weeks  notice  by  pulilication, 
stating  the  time  of  the  filing,  and  when  ai)plication  will  be  made 
for  its  confirmation,  at  which  time  all  pcr.sf^ns  interested  may 
appearand  contest  the  confirmation  or  show  that  the  report  ought 
in  any  respect  be  modified,  producing  the  appropriate  evidence 
in  support  thereof.  If,  after  hearing  all  objections,  the  Court  is 
satisfied  that  the  report  ought  to  be  approved,  it  shall  cause  an 
order  of  confirmation  to  be  entered 


86 

A  system  of  procedure  for  the  review  and  con- 
firmation of  the  Commissioners'  report,  similiar  in 
its  main  features  to  the  above,  isHkewise  provided 
for  in  the  Illinois  General  Act  in  relation  to  cities^ 
villages  and  towns. 

4.  It  is  urg-ed  that  the  statute  does  not  afford 
due  notice  because  the  notice  is  too  brief. 

The  learned  Counsel  say,  "  the  time  was  so  lim- 
ited within  which  a  property  owner  would  apply 
for  relief,"  and  add,  "  we  think  we  are  safe  in  say- 
ing that  this  is  the  shortest  statute  of  limitation  in 
the  history  of  legislation." 

An  examination  of  the  following  cases  and  stat- 
utes will  demonstrate  the  utter  groundlessness  of 
the  learned  Counsel's  contention. 

The  People  vs.  The  Mayor  of  Brooklyn,  4  N. 
Y,,  419- 

This  was  an  application  to  quash  on  certiorari, 
an  assessment  imposed  on  certain  lands  in 
the  City  of  Brooklyn,  benefited  by  the  grading  and 
paving  of  Flushing  Avenue.  The  City  Charter 
provides  that  the  assessment  shall  be  delivered 
by  the  Assessor  to  the  Clerk  of  the  Common  Coun- 
cil, who  shall  give  public  notice  In  the  Cor- 
poration newspapers,  that  the  same  has  been  so 
left  with  him^  ana  that  the  Common  Council  will,. 


^7 

on  a  certain  day  therein  stated,  whicli  sli.ill  not  be 
less  than  lo  days  from  the-  first  publication  of  the 
notice,  proceed  to  confirm  the  assessment.  Dur- 
ing that  period  any  person  interested  may  appeal 
from  the  same  to  the  Common  CounciL  who  may 
determine  such  appeal^  aad  alter  the  assessment 
in  their  judgment. 

The  Court  said  :  ^  Another  objection  is,  that  no  notice  was 
given  to  the  owners  of  said  assessment.  In  the  case  of  T/ie 
Oivners  of  Groioid  \?,.  The  Mayor,  15  Wend,  374,  it  was  ad- 
judged that  the  Legislature  had  authority  to  prescribe  what 
notice  should  be  given  in  the  case  of  an  assessment  like  the 
present,  and  if  notice  be  given  as  thus  required  it  is  sufficient. 
The  only  notice  required  by  the  statute  under  which  the  present 
assessment  was  made,  is  a  notice  to  be  published  in  the  cor- 
poration newspapers  for  ten  days  before  the  day  fixed  [for  the  al- 
teration or  confirmation  of  the  assessment  by  the  Common 
Council.  This  gives  to  any  person  assessed  an  opportunity  to 
be  heard,  and  is  all  the  notice  necessary." 

ScoU  vs.  Brackctt,  89  Ind.,  413. 

Application  to  set  aside  an  assessment  for  drain- 
age purposes  on  certain  lands,  and  for  Iea\'e  to 
remonstrate  against  the  Commissioners'  rc|)()rt. 
Thc!  statute  tmder  which  the  assessment  was  levied 
provided  that  upon  the  Conimissioners  of  drainage 
making  their  n.-port  to  the  Court,  three  days  shall 
be  allowed  to  any  owner  of  lands  affected  by  the 
work  proposed  to  r(;monstrat<;  againt  the  rc|)()rt 
for  various  reasons  specified. 

The  pciilinn(trs  insisted  tli.il  ihc  act  is  unconsti- 
tutional on  the  ground,  among  olh«'rs,  that  "  the 
notice  is  unreasonable  and  onl)  colorable." 


88 

Said  the  Coart :  "  Tke  objection  is  not  supported  by  any 
authority  and  we  are  of  opinion  that  it  is  not  well  taken  ;  simi- 
lar notices  in  many  analagous  proceedings  have  been  pre- 
scribed, and  such  acts  have  not  heretofore,  for  such  reason, 
been  deemed  invalid.  The  notice  required  may  not  bring  actual 
knowledge  of  the  proceedings  to  those  interested,  but  the  act 
cannot  for  that  reason,  be  deemed  unconstitutional." 

Blake  vs.  People,  109  111.,  505,   527. 

The  Court  said  :  "As  to  proceedings  to  charge  lands  with 
the  amount  of  special  assessments,  no  particular  kind  or  length 
of  time  of  notice  is  prescribed  by  the  constitution,  and  it  is  not 
perceived  why  one  week's  notice  by  publication,  might  not  have 
been  sufficient." 

The  City  of  Ottowa  vs.  Macy^  20  111.,  413,  420, 
In  this  case,  the  facts  of  which  have  been   pre- 
viously given,  the  Court  said: 

"  The  fifth  objection,  to  which  counsel  has  called  the  atten- 
tion of  the  Court  is,  *  that  the  City  Clerk  did  not  give 
sufficient  notice  of  the  time  and  place  of  hearing  objections  to 
the  confirmations  of  the  assessment  by  the  City  Council." 

The  sixth  section  of  article  8  of  the  City  Charter,  provides  ' 
^'That  upon  the  return  of  the  Commissioner's  assessment  to  the 
City  Clerk,  he  shall  cause  a  notice  to  be  published  in  one  or 
more  newspapers  published  in  said  city  for  six  days,  to  all  per- 
sons interested  therein,  of  the  completion  of  the  assessment  and 
the  filing  of  the  roll.  Time  and  place  shall  be  designated  for 
hearing  objections."  Under  this  provision  and  under  those  of 
the  city  ordinance  passed  in  pursuance  thereof,  the  Clerk  on  the 
8th  of  August,  1857,  published  six  days  notice  of  the  re- 
turn of  the  assessment,  and  fixing  the  i8th  of  August,  of  the 
same  year— 10  days  thence,  as  the  date  of  confirmation. 

The  Court  continuing  at  page  422,  said  : 

"We  see  no  force  in  the  objections  made  to  rendering  judg- 
ment against  the  lots  assessed." 


89 

Hays  vs.  Tippy,  91  Ind.,  102,  106. 
Application  to  set  aside  the  report  of  Commis- 
sioners appointed  to  assess  the  damages  and  bene- 
fits resulting  from  the  drainage  ol  certain  lands 
and  for  leave  to  enter  objections  against  the  same. 
The  statute  under  which  the  assessment  was  made 
provided  that  :  "  Upon  the  making  of  the  report  of 
the  Commissioners  to  the  Court,  tJirce  days  shall 
be  allowed  to  any  owner  of  lands  affected  by  the 
work  proposed,  to  remonstrate  against  the  report." 

"  The  *  point  made  by  *  counsel  in  argument," 
said  the  Court,  "is  *  *  that  that  portion  of  Sec.  4 
of  the  Drainage  Act  of  1881,  (Sec.  4276,  R.  S.,  1881,)  provid- 
ing that  but  three  days  shall  be  allowed  by  the  Court,  in  which 
an  owner  of  lands  affected  by  the  construction  of  the  drain, 
may  remonstrate,  is  unconstitutional.  The  learned  counsel  has 
not  referred  us  to  any  clause  or  section  of  the  constitutions, 
State  or  Federal,  to  which  it  can  b^^  said  that  this  provision  of 
the  statute  is  clearly  rei)ugnant,  and  we  know  of  none.  *  * 
The  time  given  for  remonstrating  is  short,  and  the  provision  may 
seem  therefore,  unreasonable  and  oppressive,  but  this  will  not 
authorize  the  courts  to  declare  it  unconstitutional.  *  The 
only  remedy  for  such  a  defect  in  the  statute,  is  by  appeal  to  the 
law-making  ix)wer." 

5.  It  is  contended,  fin  illy,  th;itthe  statute  docs  not 
provide  for  giving  the  p;u'ti(;s  Iiuerested  notice  of 
the  proceedings  to  be  had  in  tiie  C(junty  Court 
upon  and  after  objection  of  any  party  aggrieved. 

The  conteniioii,  upon  this  point,  il  1  understand 
it,  is  that,  whenever  an  aggrieved  party  proceeds 
in  the  County  Court,  all  the  other  parties  on  the  roll 
are  interested  in  the  procec^dings,  and  should,  there 


90 

fore,  be  notified  of   the  time  and  place,   when  and 
where   the    particular   matter   or  objection  will  be 

heard. 

To  this  I  answer  that : 

First. — Without  questioning,  at  present,  the 
soundness  of  the  premises  of  the  argument,  it  is 
sufficient  to  say  that  the  notice  given  under  section 
8  of  the  Act,  is  a  notice  of  the  pendency  of  the  pro- 
ceedings which  are  ultimately  to  result  in  the 
confirmation  of  the  report;  that,  from  that  time  on, 
the  parties  in  interest  are  charged  with  notice  of 
every  thing  done,  and  every  step  taken  in  the 
County  Court  ;  and  that  no  other  or  further  notice 
than  this  is  needful. 

The  precise  objection  made  by  plaintiffs  on  this 
point  has  been  long  since  made,  and  long  since 
and  uniformly  overruled.  It  was  first  urged  in 
Patterson  vs.  The  Mayor,  Etc.,  i  Paige  Ch.  114, 
In  declaring  it  untenable,  Chancellor  Walwoth 
said  : 

"  The  alleged  irregularity  is  that  the  Commissioners  altered 
the  assessment,  and  reduced  the  amount  allowed  to  the  com- 
plainant, without  any  written  objections  being  put  in  by  him,  and 
without  notice  to  the  complainant  to  appear  and  oppose.  On 
loolcing  into  the  statute  under  which  those  proceedings  were  had, 
I  am  inclined  tj  believe  it  was  not  intended  by  the  Legislature 
that  any  further  notice  should  be  given  than  the  one  which  was 
published  in  this  case.  In  the  assessment  and  appraisal  of 
damages  in  these  street  cases,  what  is  allowed  to  that  class  of 
persons  whose  property  is  taken  for  the  improvement,  is  to  be 
levied  upon  another  class  whose  property  is  supposed  to  be 
benefited  thereby.      The  necesessary    result  of    this   is,    that 


91 

il  anyone  objects  to  the  amount  allowed  to  or  assessed 
upon  himself,  the  Commissioners  cannot  alter  that  allow- 
ance or  assessment  without  making  a  corresponding  change 
in  relation  to  some  or  all  of  the  others.  ITie  statute 
directs  the  deposit  of  the  copy  of  the  report,  and  ]>ublic  notice 
thereof  to  be  given  in  the  newspapers  and  of  the  time  and  place 
of  presenting  the  report  to  the  Supreme  Court  for  confirmation. 
If  any  person  is  dissatisfied,  he  may  Avithin  ten  days  make  his 
objections  in  \vTiting  to  the  Commissioners,  and,  if  objections 
are  made,  they  must  review  the  assessment  before  presenting  it  to 
the  Court.  The  Legislature  never  could  have  contemplated  the 
deposit  of  a  new  copy,  and  a  new  notice  to  propose  objections 
as  often  as  the  Commissioners  reviewed  their  assessment.  Such 
a  construction  of  the  Act  would  be  productive  of  great  and  un 
necessary  d^lay,  and  would  be  inconsistent  with  the  provision 
which  directs  the  notice  of  presenting  the  report  to  the  Court 
to  be  given  at  the  same  time  with  the  notice  of  the  depositing 
the  copy  for  inspection,  that  objections  in  writing  may  be  made 
thereto.  The  notice  to  propose  objections  to  the  report  is  a  suffi- 
cient notice  to  those  who  are  dissatisfied  with  the  original  report,  to 
appear  before  the  Coinmissimers  and  oppose  any  alterations  which 
may  be  proposed  by  the  persons  objecting.  At  the  expiration  of 
ten  days  they  can  apply  to  the  Commissioners  and  ascertain 
whether  any  objections  are  made,  and  they  7i.<ill  then  be  at  liberty 
to  be  lieard  in  opposition  thereto.  If  the  Commissioners  decide 
in  favor  of  the  objections,  the  original  notice  points  out  the 
time  and  place  for  the  person  aggrieved  thereby  to  appear  before 
the  Supreme  Court,  and  oppose  the  adoption  of  such  amended 
report." 

Chaynberlain  \'>>.  Cleveland,    34    Ohio,   St.    551, 

The  Statute  under  cfjiisideralion  in  this  case  jiro- 

vidcd  : 

Tiiat  in  all  cases  in  which  it  was  deter  mined  by  the  Common 
Council  to  a<;sess  the  cost  of  an  improvement  upon  abutting  prop- 
erty, the  board  might  appoint  disinterested  freeholders,  to  report 


92 

an  estimated  assessment  of  the  benefits,  which  assessment  should 
be  filed  in  the  office  of  the  clerk  of  the  corporation  for  in- 
spection. That  before  adopting  the  assessment,  the  Couttcil  should 
publish  notice  for  three  consecutive  weeks,  m  a  newspaper  of  gen- 
eral circulation,  that  the  assessmetit  had  been  made  and  that  the 
s-ime  zoas  on  file  in  the  office  of  the  clerk  for  the  inspection  of  in- 
terested parties.  That  any  person  interested  should  file  his  objec- 
tions with  the  clerk  within  two  weeks  after  the  expiration  of  such 
notice,  and  thereupon  the  Council  should  appoint  three  disinter- 
ested freeholders  to  act  as  an  equalizing  board,  *  *  that  on  a 
day  appointed  by  the  Council  such  equalizing  board  should  hear 
evidence  on  said  assessment,  and  equalize  the  same  ;  th^y  should 
then  report  the  equalized  assessment  to  the  Council,  who  had poiver 
to  confirm,  set  aside,  or  alter  the  same  ;  that  the  confirmation  by 
the  Cou7icil  should  be  conclusive.  66  Ohio  Laics,  p.  248,  {i86g.) 
The  Court  said  :  •'  It  is  objected  by  the  plaintiff  that  the 
equalized  assessment  is  void,  on  the  ground  that  no  notice  was 
given  of  the  time  the  Board  of  Equalization  would  proceed  with 
the  equalizing  of  the  assessment,  nor  was  any  notice  given  of 
the  filing  of  the  same  with  the  clerk  or  Council.  We  do  not 
think  this  objection  well  taken.  By  the  provisions  of  Section 
585,  before  adopting  the  assessment  made  by  the  Assessing 
Board,  the  Council  is  required  to  publish  notice  for  three  con- 
secutive weeks  that  such  assessment .  has  been  made,  and 
that  the  same  is  on  file  in  the  office  of  the  clerk,  for  the  inspec- 
tion and  examination  of  any  person  interested  therein.  *  *  * 
VV^e  think  that  after  the  notice  required  has  been  given,  all  per- 
sons interested  have  a  reasonable  opportunity  to  be  heard 
against  the  assessment,  and  that,  from  this  point,  the  proceeding 
?nust  be  regarded  as  pending,  and  that  all  persons  interested  ar^ 
bound  to  take  notice  of  what  is  done  up  to  the  time  the  equalized 
assessment  is  confirmed.^' 

Gilbert  vs.  City  of  New  Ifaven,  39  Conn.  467. 

In  proceedings  for  widening  West  Water  street 
in  New  Haven,  the  matter  of  assessing  benefits 
and   damages   was,  under    the    provisions    of   the 


93 

Charter,  and  in  pursuance  of  an  order  of  the  Com- 
mon Council  referred  to  the  Board  of  Compensation, 
who  made  a  report  to  the  Council,  which  was  re- 
jected and  a  recommittal  ordered;  the  board  there- 
after revised  their  former  assessments  and  made  a 
new  report,  raising  the  amount  of  certain  assess- 
ments, which  report  was  thereafter  accepted  by 
the  board,  and  the  assessments  laid  accordingly. 
It  was  conceded  that  but  one  notice  was  given  to 
the  appellant  by  the  Board  of  Compensation, 
viz  :  a  notice  of  the  first  order  of  reference  by  the 
Council,  and  that  no  notice  was  given  of  the  re- 
committal, or  second  order  of  reference,  nor  was 
he  present  at  any  meeting  of  the  board  after  such 
second  order,  or  heard  in  reference  thereto  at  the 
hearing  at  which  the  assessment  was  made,  nor 
was  he  present  nor  did  he  have  a  hearing  at  the 
meeting  of  the  Council  a[jproving  th(i  correcicd 
report.  The  Court  below  overruled  his  objection 
that  the  assessments  were  irregular  and  voitl  in 
consequence,  holdmg  that  but  one  notice  was  re- 
quired, viz  :  the  notice  given  of  llut  hrst  order 
of  reference. 

Said  the  Appellate  Court  (CarpciUcr  j.)  : 

"It  is  *  ol)jected  that  the  ap|)cllanl  had  no  notice  of  the 
recommittal,  and  of  the  subsequent  j^rorcedings.  We  are  satisfied 
that  none  was  required.  The  w/io/i'  luattfr  from  the  time  of  its 
first  reference  to  the  Board  of  Compensation  to  the  time  the  report 
was  finally  adopted  by  the   Court  of   Common   Council,  was  one 


94 

proceeding.  The  appellant  was  notified  in  the  first  instance  and 
appeared.  If  he  neglected  to  attend  the  suhsequent  stages  of  the  pro- 
ceeding it  affords  him  no  ground  of  complaint  now  " 

Gillett  vs.  The  Treasurer,  2,0  Kas.  166. 

I'he  Court  said  :  "Sec.  43,  Ch.  107  General  Statutes  consti- 
tuted the  Board  of  Equalization.  *  The  time  of  meeting  of  that 
board  was  fixed  by  Statute,  and  notice  of  the  time  of  the  meet- 
ing was  also  required  to  be  published,  so  it  was  held  that,  given 
power  to  equalize,  the  time  of  meeting  prescribed,  as  well  as 
publication  of  the  notice  of  the  time  of  meeting,  the  board  with- 
out further  and  special  notice  had  power  to  change  the  assess- 
ment of  real  estate  by  either  raising  or  lowering." 

Gates  vs.  Brooks,  59  Iowa,  510,  513, 

Said  the  Court:  "The  Statute  (in  relation  to  the  settlement 
of  boundaries  between  contiguous  land  owners)  provides  in 
substance  that,  where  the  owner  of  land  cannot  agree  with  the 
owner  of  adjacent  land,  in  regard  to  the  boundary  line  between 
the  tracts,  he  may  cause  a  notice  to  be  served  on  the  owner  of 
the  adjacent  land  that  on  a  day  named  he  will  apply  to  the 
District  Court  for  the  appointment  of  a  commission  of  one  or 
more  surveyors  to  survey  and  establish  the  boundary  line.  The 
Statute  also  provides  that  on  the  day  named,  if  a  proper  petition 
and  proof  of  due  notice  have  been  filed  in  the  District  Court, 
the  Court  shall  appoint  a  commission  of  one  or  more  surveyors 
who  shall  survey  the  boundary  line,  and  make  a  report  of  their 
doings,  accompanied  by  a  plat,  and  notes  of  the  survey. 

"The  Statute  also  provides  that  the  commission  may  take  evi- 
dence and  incorporate  the  same  with  their  survey ;  and  that 
upon  the  filing  of  the  report,  any  person  adversely  interested 
may  enter  objections  to  it,  and  the  Court  shall  hear  and  deter- 
mine the  same,  and  shall  approve  or  reject  the  report,  or  modify 
it  as  it  shall  see  fit,  and  enter  judgment  accordingly.  The  de- 
fendants contend  that  the  Statute  is  in  conflict  with  Sec.  9,  Art 
I  of  the  constitution,  which  provides  that  '  no  person  shall  be  de- 
prived of  life,  liberty  or  property  without  due  process  of  law,, 
and  insist  that  they  have  been  so  deprived." 


*     *     ■ 
tutional.'" 


95 

"We  cannot  property  hold  the  Statute  unconsti- 


Avery    vs.    East    Sa^inaix/,   44    Mich.,    587, 

591.      (Marston,  J.)  : 

"  The  Charter  of  East  Saginaw  provides  for  a  Board  of  Re- 
view (in  tax  proceeeings,)  and  specifies  the  duties  thereof,  among 
which  is  the  right  to  increase  the  valuation  of  any  property 
found  in  said  roll.  The  Common  Council  is  to  appoint  the 
time  and  place  where  said  board  shall  meet,  and  the  charter  re- 
quires that  notice  thereof  '  shall  be  given  by  the  Clerk  of  the  Com- 
mon Council  at  least  ten  days  prior  to  the  time  of  meeting,  by 
publishing  a  notice  thereof  in  the  official  newspaper  published  in 
said  city,  and  also  by  posting  the  same  in  three  different  public 
places  in  each  ward  of  said  city.'  I  concede  the  correctness  of 
the  doctrine  that  no  changes  can  be  made  by  the  board  without 
notice  to  the  person  against  whose  interest  such  change  is  made, 
and  an  opportunity  given  him  to  show  cause  why  no  such  change 
should  be  made,  but  in  my  opinion,  the  general  notice  given  by 
the  Clerk  is  all  that  is  necessary,  and  that  no  formal  or  special 
notice  beyond  this  is  required.  *  *  *  *  j  ^-^^ 
see  but  little,  if  any,  object  in  giving  the  general  notice  re- 
quired by  the  charter,  if  in  addition  thereto,  special  notice  must 
also  be  given  in  cases  like  the  present.  Under  the  general  notice 
p.irties  must  attend  the  meetings  of  the  board  as  they  would  the 
sessions  of  a  Court,  until  their  assessment  is  passed  upon,  and 
when  once  this  is  done,  no  change  could  afterwards  be  made 
without  special  notice  within  the  case  of  Griswold  vs.  Bay  City, 
24  Mich.,  262.  This  may  be  an  inconvenience  to  the  tax  payor, 
but  it  is  one  for  the  Legislature  to  remedy." 

Secondly. — The  objcction.s  which,  midrr  .my 
construction  tliat  may  be  i;iv(:n  to  lli<'  statute  can 
be  made  to  tlie  report,  sfj  far  as  they  may  aflect 
others  than  the  party  complaininJ^^  cannot  I)y  any 
possibihty  exceed  the  following  : 


96 

a.  An  objection  by  a  land-owner,  whose  property 
has  been  taken  or  damaged,  that  his  award  is  too 
low,  and  asking  to  have  it  increased. 

b.  An  objection  by  a  land-owner,  whose  property 
has  been  benefited,  that  his  assessment  is  too  high, 
and  asking  to  have  it  lowered. 

c.  An  objection  by  a  land-owner,  whose  land  is 
subject  to  be  burdened  with  the  cost,  that  a  cer- 
tain award  of  damages  to  another  person  is  too 
high,  or  a  cerain  assessment  of  benefits  to  another 
person  is  too  low. 

d.  An  objection  by  any  person  in  interest,  that 
the  proceedings  are  irregular  or  void,  and  praying 
that  the  whole  report  be  refused  approval  or  con- 
firmation. 

The  question  here  arises  :  When  a  petition  pre- 
senting any  of  the  objections  above  set  forth  is 
filed,  and  the  Board  have  taken  issue  thereon,  is 
there  any  means  of  giving  notice  of  that  proceed- 
ing to  the  property-holders  of  the  district,  afford- 
ing them  a  hearing  therein  ?  And  is  there  any 
constitutional  necessity  for  giving  them  such  notice 
and  hearinsr  ? 

The  ground  upon  which  these  questions  are 
asked,  is,  as  I  understand  it,  this  :  First,  if  an 
award  of  damages  is  increased,  the  burden  upon 
the  assessed  district  is  proportionally  increased  ; 
and,  therefore,  every  property-holder  in  the  district 


97 

has  a  right  to  be  notified  of  the  proceeding,  and  to 
be  heard  therein.  Secondly,  if  the  assessment  of 
benefits  of  any  one  property-holder  is  lowered,  the 
burden  upon  the  other  property-holders  of  the  dis- 
trict is  proportionally  increased  ;  and  therefore, 
every  property-holder  in  the  district  has  a  right  to 
a  hearing  on  that  point.  Thirdly,  if  it  is  sought  to 
lower  the  award  of  damages,  or  to  raise  the  as- 
sessments of  benefits  of  any  one  person,  he  is 
entitled  to  be  notified  and  heard  in  the  pro- 
ceeding, which  diminishes  his  individual  compen- 
sation, or  increases  his  individual  burden.  Fourth- 
ly, if  an  attempt  is  made  to  dismiss  the  whole  pro- 
ceeding in  the  County  Court,  the  property-holders, 
who  have  an  interest  in  having  the  improvement 
made,  are  entitled  to  be  notified  and  heard. 

I  shall   endeavor  to   answer   these   propositions 
in  the  order  in  which  I  have  stated  them. 

a.  If  it  is  urged  that,  whenever  a  person  peti- 
tions to  have  his  award  of  damages  for  property 
taken  or  injured  increased,  every  property-holder 
in  the  assessing  district  must  be  notified,  antl  is 
entitled  to  be  heard.  Fur  the  present,  grant  it. 
The  learned  counsel  for  the  plaintiffs  contend  that 
the  notice  must  be  personal.  Cranl  this,  also. 
With  these  principles  established,  let  us  note  iIkj 
result.  There  are,  we  will  sa\-.  fi\c  hundrctj  \n\-- 
■sons  to  whom  awards  of  damages  have  been  made, 


98 

and  there  are  two  thousand  property-holders,  upon 
whose  land  assessments  for  benefits  have  been 
laid.  One  of  these  first  files  his  petition  to  have 
his  award  raised,  say  from  $5000  to  $10,000. 
We  are  now  told  that  every  one  of  the  two  thous- 
and assessed  persons  of  the  district  must  be  noti- 
fied— personally  notified — of  this  proceeding.  In 
compliance  with  this,  a  summons,  bearing  the 
greeting  of  the  sovereign  people  of  California  to 
each  of  the  two  thousand  by  name,  issues  from  the 
County  Court.  The  sheriff  may  possibly  find 
these  two  thousand  persons  in  the  State,  and  serve 
them.  I  will  assume  that  he  does  so.  I  will  then 
suppose  that  the  same  proceedings  are  taken  with 
reference  to  the  five  hundred  claimants  of  damages. 
The  day  of  trial  comes,  and  these  two  thousand 
property-holders  appear  in  Court,  each  by  his  own 
attorney.  The  proceedings  now  go  forward,  with 
the  petitioners'  attorneys  on  one  side,  and  the  at- 
torney of  the  Board  and  the  two  thousand  attor- 
neys of  the  land-holders  on  the  other.  It  is  ans- 
wered that  this  reductio  ad  absurdtim  cannot  hap- 
pen. I  ask,  why  not  ?  Because,  it  is  said,  it  is 
not  presumable  that  each  and  every  property- 
holder  will  appear.  But,  by  what  right  is  it  pre- 
sumed that  he  will  not  ?  Why  does  the  constitu- 
tion require,  as  it  is  claimed,  that  they  should  be 
notified  ?  Because,  they  have  an  interest,  we  are 
told.     Why  does  the  constitution  guarantee  them,, 


99 

as  it  IS  claimed,  a  hearing?  In  order  to  protect 
their  interests,  we  are  told.  Does  the  law  which 
requires  notice  and  guarantees  a  hearing  presume, 
at  the  same  time,  that  the  notice  will  be  unheeded 
and  the  hearing  unavaited  of?  On  the  contrary, 
the  law  summons  parties  into  Court,  presuming 
that  they  will  come.  It  promises  to  hear  them, 
presuming  that  they  will  speak. 

The  operation  of  this  rule  may  be  carried  still 
further.  The  award  of -damages  by  the  Board, 
and  its  confirmation  by  the  County  Court,  amount 
to  a  condemnation  for  a  public  use  of  the  property 
taken.  The  assessed  district  must  pay  that  award 
in  the  shape  of  an  annual  tax.  As  the  burden  of 
the  tax  will  be  in  proportion  to  the  award,  we  are 
told  that  the  tax-payers  of  the  district  have  a  right 
to  be  heard  in  a  proceeding  which,  by  determining 
the  amount  of  the  award,  fixes  the  extent  of  their 
burden.  Now,  suppose  that  the  statute  had  made 
the  assessment  district  commensurate  with  the 
city  ;  in  other  words,  that  it  had  enacted  that  the 
cost  of  opening  Dupont  Street  should  be  borne 
by  the  property  of  the  whole  municipality  ;  apply- 
ing the  principles  contended  for,  ii  would  be  nec- 
essary to  give  to  each  of  the  fifl)-  ihoiisaiid  lax- 
payers  of  the  city  individual  notice  and  opportuni- 
ty to  be  heard.  According  to  the  constiiuiioiial 
rules  contended  for,  this  result  would  be  inevilai)le. 


lOO 

Go  one  step  further.  The  State  of  Cah'fornia 
institutes  proceedings  to  condemn  lands  for  a 
prison,  an  asylum,  a  capit9l,  or  any  other  public 
work.  The  whole  property  of  the  State  must  pay 
the  cost  in  the  shape  of  a  tax.  Each  tax-payer  is, 
of  course,  interested  -in  the  proceedings  for  con- 
demnation ;  for  his  bjjrden  of  taxation  will  be  in 
proportion  to  the  avYjard  ^nade.  Accordino^  to  the 
principles  contended  ,for,  each  tax-payer  in  the 
State  must;,bq^ndj,vidually  notified  of  the  condem- 
nation proceedings,  and  be  afforded  an  opportuni- 
ty to  be  heard  therein. 

These  are  the  legitimate  and  unavoidable  re- 
sults of  the  constitutional  guarantees,  so  much  in- 
voked in  this  cause.  Here  are  proceedings  con- 
structed upon  sound  constitutional  principles,  as 
expounded  by  the  learned  counsel  for  plaintiffs. 
Every  wheel,  every  belt,  every  shaft,  every  cog  of 
the  machine  is  upon  the  most  approved  pattern. 
It  is  constitutionally  perfect,  in  the  whole  and  in 
every  part.  It  has  only  one  drawback  :  it  will  not 
work.  This,  of  course,  i?  a  very  slight  objection 
to  those  who  talk  so  eloquently  about  "  Runy- 
mede"  and  "Magna  Charta"  and  the  "great 
swelling  words  of  liberty  which  have  been  thun- 
dered into  the  ears  of  tyrants  by  our  English 
speaking  race";  but,  still,  it  cannot  but  be  admitted 
that  it  is  an  objection. 


lOI 

I  may  be  asked  :  Do  you  mean  to  deny  that  no 
person  can  have  his  property  taken  from  him, 
either  directly  or  by  assessment,  without  being 
notified,  and,  if  he  wishes,  heard  ?  No,  I  do  not 
mean  to  deny  it.  But,  I  do  mean  to  deny  that 
this  right  to  protect  his  property  must,  in  all  cases 
and  under  all  circumstances,  be  exercised  by  him 
individually,  and  cannot  be  exercised  by  repre- 
sentation. I  do  mean  to  assert  that,  in  the  de- 
termination of  what  shall  or  shall  not  be  a  public 
charge,  and  the  amount  of  that  charge,  the  public 
must,  of  necessity,  act  and  be  represented  and 
heard  through  public  agents  ;  and  each  individual 
member  of  the  community  cannot,  from  the  very 
nature  of  the  case,  personally  appear  and  be  indi- 
vidually heard.  The  right  to  be  notified  and 
heard  is  not  denied,  though  its  exercise  be  not 
granted  to  each  person  individually  ;  the  right  is 
exercised  by  each,  in  the  only  way  that  it  can  be 
exercised,  when  all  appear  collectively  by  their 
agent  and  representative,  legally  constituted  and 
appointed  for  that  purpose. 

For  instance:  when  the  State  institutes  con- 
demnation proceedings,  the  cost  of  which  Is  to 
fall  upon  every  taxpayer  of  the  St  ite,  each  lax- 
payer  is  unquestionably  interested  in  having  the 
cost  reduced  to  a  miiiinium;  and,  as  his  propc-rty 
is  to  be  burdened  with   the;  cost,  he   has  a  right  lo 


I02 


be  heard  in  the  proceeding.  But,  as  the  nature 
of  the  case  makes  it  impossible  for  each  to  be 
heard  individually,  the  right,  like  all  other  rights 
which  are  common  to  the  whole  people  of  the 
State,  must  be  exercised  by  representation.  The 
officers  of  the  State,  conducting  the  proceedings, 
represent  all  the  taxpayers  of  the  State.  Through 
them,  each  and  every  taxpayer  is  heard  and  pro- 
tected. So,  where  the  City  is  condemning  lands 
for  a  street  or  any  other  public  use,  where  the 
cost  is  to  be  borne  by  the  whole  City,  the  officials 
constituted  by  law  to  conduct  the  proceeding 
represent  therein,  each  and  every  taxpayer  in  the 
City,  and  protect  and  enforce  the  right  of  each  to 
have  the  common  burden  made  as  light  as  may 
be.  The  same  is  true,  where  the  cost  is  to  fall 
upon  a  more  restricted  district  than  the  whole 
City.  The  legally  constituted  agents  authorized 
to  represent  and  act  for  the  district  do  represent  it 
and  act  for  it  in  all  matters  which  are  common  to 
the  whole  district.  The  individual  property-holder 
in  the  district  is  entitled  to  be  individually  heard 
in  all  matters  which  affect  him  individually  as  dis- 
tinguished from  the  rest;  but,  where  his  interest  is 
common  with  that  of  all  the  other  members  of  the 
district,  all  must  be  represented  and  act  in  com- 
mon. And  that  can  only  be  done  through  the 
public  agents  authorized  to  act  and  speak  for  the 
common  cause. 


103 

In  this  case,  for  instance,  when  a  person  filed 
his  petition  to  have  his  award  of  damages  increased, 
he  was  obh'ged  to  cite  the  Board  to  appear  and 
answer.  When  the  Board  so  appeared,  the  an- 
tagonistic interests  of  the  contest  were  brought 
face  to  face — -the  individual,  representing  himself 
alone,  seeking  to  have  his  individual  compensation 
increased,  the  Board,  representing  the  common 
interest  of  the  district,  seeking  to  have  it  reduced 
to  a  minimum.  Thus,  both  sides  were  represented 
and  heard  in  the  only  way  in  which,  in  the  nature 
of  things,  they  could  be. 

People  vs.  Smith,  21  N.  Y.,  595..  was  n 
certiorari  to  review  the  order  of  a  County 
Judge,  setting  aside  an  order  of  the  Commission- 
ers of  Highways  of  the  town  c>{  Rix-erhcad,  on 
Long  Island,  refusing  to  lay  out  a  highway.  Ww 
statute  under  consideration  provided  that  "  ilu- 
Commissioners  have  power  to  lay  out  new  roads. 
without  the  consent  of  the  owners  of  tin,-  land 
through  which  they  may  run.  upon  the  pdliion  of 
twelve  freeholders."  Nolliing  is  saitl  as  to  ihcir 
giving  notice  to  anyone  of  the  hearing  ol  the  ap- 
plication b('fore  them.  Mvery  person  conceiving 
him.self  aggrieved  by  a  determination  of  the  com- 
missioners, cither  in  laying  out.  or  rehising  to  lay 
out,  a  highway,  may  appeal  to  three  judges  of  the 
Court  of  Common    IMeas,  or,   under   the   present 


I04 

Constitution,  to  the  County  Judge.  Where  the 
determination  appealed  from  is  against  an  appli- 
cation for  laying  out  a  road,  the  judge  is  to  give 
notice  of  the  time  and  place  of  hearing  the  appeal 
to  the  Commissioners  by  whom  such  determination 
was  made,  and  the  proofs  and  allegations  of  the 
parties  are  then  to  be  heard. 

"It  will  be  thus  seen,"  said  Denio,  J.,  p.  597,  "that  the  only 
notice  which  the  statute  requires  to  be  given,  in  a  case  like  the 
present,  is  of  the  time  and  place  of  hearing  the  appeal,  and  that 
such  notice  is  only  required  to  be  given  to  the  Commissioners 
who  made  the  order  appealed  from." 

The  sole  error  relied  on  was  that  no  notice  of 
the  proceedings  on  the  appeal  were  served  on  the 
relators,  who  were  interested  parties,  and  no  notice 
of  the  hearing  before  the  County  Judge. 

By  the  Court  (p.  599) : 

"The  appropriation  of  the  property  is  an  act  of  public  admin- 
istration, and  the  form  and  manner  of  its  pertormance  is  such 
as  the  Legislature  shall,  in  its  discretion,  prescribe.  In  the  case 
before  us,  the  Act  declares  that  the  Judge  shall  give  notice  to 
the  Commissioners  of  Highways  whose  order  is  appealed  from, 
and  it  is  silent  as  to  notice  to  any  other  person.  The  appellants 
and  the  Commissioners  are  the  only  parties  who  are  required  to 
be  convened  on  the  hearing  before  the  Judge,  or  to  have  notice 
of  that  hearing,  and  it  is  their  proofs  and  allegations  only  which 
the  judge  is  obliged  to  hear.  //  luas  doubtless  considered  that 
the  Commissioners,  who  had  officially  decided  against  the  act 
which  the  appellants  were  seeking  to  promote,  would  sufficiently 
represent  the  views  oti  that  side  of  the  question." 

Burnham\?,.  Goffstown,  50  N.  H..  560,  563. 
To    proceedings    for    laying  out  a  highway  and 


IC5 

apportioning  the  expense  thereof  between  two 
towns,  one  Cheney,  a  taxpayer  of  one  of  the 
towns,  after  the  order  laying  out  had  been  made, 
interposed  an  objection  that  the  appointment  of 
the  Commissioners  was  not  authorized  by  law,  and 
that  they  had  made  a  mistake  in  apportioning  the 
expense  of  the  road  to  the  towns.  When  the 
Commissioners  were  appointed,  the  towns  were 
present  by  counsel,  and  did  not  object.  Said  the 
Court: 

"Mr.  Cheney,  who  seeks  to  come  in  as  a  taxpayer,  has  no 
right  to  appear  and  no  claim  to  be  heard,  either  in  Court  or 
before  the  Commissioners,  except  as  one  of  the  public.  His 
interest  is  too  remote ;  he  is  represented,  as  are  all  other  tax- 
payers in  the  toion,  by  the  toivn,  which  is  the  body,  the  aggre- 
gation of  all  the  taxpayers  and  voters  and  citizens  who  reside 
in  it.  The  toivn  is  represented  here,  and  that  is  all  the  rep- 
resentation to  which  the  tuxpayers  as  such  are  entitled. "" 

I  conclude,  therefore,  that,  in  the  first  case  sup- 
posed, where  a  person  sought  to  have  his  award 
increased,  the  right  of  the  property-holders  of  the 
district  to  be  notified  and  h('ard  was  exercised 
through  their  representatives,  the  Bf)ard  o{  Com- 
missioners, and  that  there  was  no  consiilutional 
necessity  for  notifying  and  hearing  each  of  ihcm 
personally  and  indivifUially. 

I).  It  is  next  urged  that,  whenever  a  land-holder 
whose  property  nas  been  benefited  comi)laiiis  that 
his  assessment    is    too    high  and    asks  to  h,i\''    n 


io6 

lowered,  every  other  land-holder  in  the  district  is 
entitled  to  be  notified  and  heard,  because  the  low- 
ering of  any  one  assessment  necessarily  increases 
all  the  others. 

The  answer  which  I  have  given  to  the  first  ob- 
jection is  applicable  here.  The  whole  district 
has  a  common  interest  in  resisting  an  application 
to  lower  an  assessment.  That  common  interest 
is  represented  by  the  Board  of  Commissioners, 
who  must  be  notified  of  the  application,  and  may 
appear  in  Court  and  resist  it.  The  right  of  each 
taxpayer  to  be  notified  and  heard  in  the  common 
cause,  is  exercised  through  these  legally  appointed 
representatives.  So  far  as  I  have  been  able  to  as- 
certain, it  has  never  been  the  practice  in  any 
statute,  which  gives  any  party  aggrieved  the  right 
to  apply  to  have  his  own  assessment  reduced,  to 
make  the  other  parties  to  the  assessment,  parties 
individually  to  that  particular  proceeding.  Take 
it  in  the  case  of  general  taxation:  A  taxpayer  ap- 
plies to  the  County  Board  of  Equalization  to  have 
his  assessment  reduced.  The  Board  appoint  a 
time  to  hear  his  application.  The  Statute  does 
not  provide  for  giving  to  the  taxpayers  of  the 
county,  individual  notice  of  that  proceeding.  And 
yet,  in  a  certain  .sense,  every  taxpayer  in  the 
county  has  an  interest  in  the  matter,  for,  in  pro- 
portion as  each  assessment  is  diminished,  the  rate 


I07 

of  taxation    necessary  to    raise    the  requisite  rev- 
enue must,  proportionally,  be  increased. 

Again  :  The  State  Board  orf  Equalization  may 
raise  the  assessment  af  any  County  in  this  State. 
"  When  they  raise  it  in  any  County,  they  neces- 
sarily raise  it  on  the  property  of  every  individual 
who  Qwns  any  in  that  County.  Must  each  of  them 
have  notice  and  a  separate  hearing  ?  "^  "-  '"" 
If  this  be  so,  the  expense  of  giving  notice,  the 
delay  of  hearing  each  individual,  would  render  the 
exercise  o(  the  main  functions  of  this  Board  im- 
possible." ^ 

Again  :  In  Swamp  Land  Reclamation  Dis- 
tricts, each  land-holder  may  resist  in  Court  the  col 
lection  of  his  assessment,  urging  that  it  is  ex- 
cessive. If  all  the  other  land-holders  in  the 
district  have  paid  their  assessment  to  the  County 
Treasurer,  they  are,  of  course,  interestcxi  in  defeat- 
in^r  this  resistance  ;  for.  if  the  defense  is  successful, 
the  burdens  upon  the  rest  will  be  proporiioiially  in 
creased,  since,  if  the  original  assessment  turn  out 
insufficient,  the  Supervisors  may  order  additional 
assessments."  Yet,  the  vStatute  provities  no  ma- 
chinery for  bringing  anyone  into  Court,  except 
the  immediate  party  to  the  action. 

The  reasons  which  I  have  lier<inai)ov(,-  gixcn. 
obtain    here.      When  an  individual    ajjplirs   to  the 

1  State  R.  R.  Tax  Cases,  92  U.  S.,  609. 

2  Hager  w.  Reclamation  Dist.,  Ill  U.  S. 


io8 

County  Board  of  Equalization  to  have  his  assess- 
ment lowered,  the  interest  of  the  other  taxpayers 
of  the  County  to  resist  him  is  common  to  them 
all.  That  right  they  cannot  be  individually  noti- 
fied of,  in  every  given  instance,  nor  can  they  each 
individually  exercise  it.  They  must  exercise  it  by 
delegation  and  representation.  They  do  ex- 
ercise it,  and  receive  the  full  protection  of  it 
through  their  authorized  representatives,  the 
Board  itself.  So,  in  the  case  of  the  Swamp  land 
district.  The  district,  which  brings  the  action 
against  the  delinquent,  represents  each  and  every 
individual  taxpayer  of  the  district,  in  that 
which  is  of  common  interest  to  them  all — the  col- 
lection of  a  tax  which  goes  into  the  common  fund. 
Each  and  everv  r'lQ-ht  which  is  common  to  all  the 
taxpayers  of  the  district,  is  represented  and  en- 
forced by  the  agents  of  all — the  plaintiffs  in  the 
action. 

I  conclude,  therefore,  that,  in  a  proceeding  by  an 
individual  proprty-holder  in  the  district,  to  have 
his  assessment  of  benefits  reduced,  the  other 
land-holders  of  the  district  have  no  riofht  to  be  in- 
dividuall^^  notified  or  heard, 

c.  It  is  next  urged,  that,  where  a  person  in 
interest  applies  to  have  an  award  of  damages  made 
to  another  lowered,  or  an  assessment  made  against 
another  raised,  the  person  thus  attacked  is  entitled 
to  be  notified  and  heard. 


109 

If  such  a  proceeding  as  is  here  contemplated 
can,  under  the  statute,  be  taken  and  entertained, 
I  would  not  deny  that  the  person  thus  adversely 
moved  upon  should  be  notified  and  heard;  for,  this 
is  an  attack  upon  him  individually,  affectin::^  an 
interest  peculiar  to  himself,  and  not  common  to 
him  and  the  rest  of  the  district,  and  in  which, 
therefore,  the  Board  do  not  represent  him.  Rut 
I   answer: 

The  statute  permits  no  such  proceedings  ;  nor 
is  it,  under  the  Constitution,  required  to  do  so. 
The  Constitution  does  not  guarantee  to  any  person 
the  riLrht  to  be  heard  in  fixinij  the  assessment  of 
any  other  person,  or  the  amoimt  awarded  him  lor 
property  taken  or  damaged  in  the  exercise  of  the 
right  of  eminent  domain.  In  that  he  has  no  in- 
dividual interest.  His  interest  is  common  with 
that  of  all  the  others  of  his  class,  I  f  the  assessment 
is  too  low,  it  does  affect  him  in  making  his  own  bur- 
den proportionately  greater  ;'  but  it  aflects  all  the 
other  taxpayers  in  the  same  way.  II  fhcawanl  is 
too  high,  it  does  aff(.'ct  him  in  making  his  share  ot 
the  pa\ni(Mit  proportionate!)'  greater;  l)ul  it  alfecls 
all  others  who  are  to  pa)-  in  the  same  way.  In 
either  evc-iit,  the  interest  being  common  to  .ill, 
it  must  be  represented  by  all,  and  is  represented 
by  the  public  agents  who  make  the  assessment  r)r 
award  the  damage.s.  To  hold  otherwise,  would 
be  to  give  every  taxpayer  in  tiic  community  a  cou- 


I  lO 

stitutional  right  to  contest  every  assessment  upon 
the  tax  roll,  and  to  be  made  a  party  to  every  con- 
demnation proceeding. 

Nor  does  the  statute  require  it.  It  gives  the 
right  to  appear  to  a  person  "  feeling  himself  ag- 
grieved by  the  action  or  determination  of  said 
Board,"  to  set  forth  his  objections.  But,  that 
grievance  must  be  one  personal  to  himself,  one  in 
which  he  has  a  direct,  not  a  remote  interest. 

The  principle  is  recognized  in  the  case  of  Fagan 
vs.  City  of  Chicago,  84  111.,  227,  235,  where  it  was 
said  : 

"  We  see  no  objections  to  the  Court  below  confining  the  ex- 
amination of  the  witnesses  to  a  comparison  of  the  assessments 
objected  to  on  a  particular  lot,  with  the  general  assessment 
against  all  of  the  other  lots.  The  question  being  tried  was  what 
proportion  the  assessment  on  the  particular  lot  bore  to  the  as- 
sessment imposed  on  all  of  the  other  lots,  and  not  as  to  that  on 
another  specified  lot.  It  was,  whether  the  particular  lot  was 
over  or  under  assessed  in  proportion  to  the  general  assessment. 
It  would  seem,  that  no  person  could  imagine  that  if  it  could  be 
shown  that  of  perhaps  a  thousand  lots,  assessed  in  this  case,  one 
was  rated  too  low,  the  whole  assessment  should  be  held  invalid. 
To  so  hold,  would  be  to  thwart  the  purpose  the  General  Assem- 
Vjly  had  in  view  when  this  enactment  was  adopted.  Nor,  would 
it  be  practicable  to  permit  each  attorney  representing  each  ob- 
jector, to  examine  every  witness,  so  as  to  compare  the  assess- 
ment of  the  lot  for  which  o'ojections  were  filed,  with  every  other 
lot  assessed." 

Also  in  Clapp  vs.   Hartford,   35   Conn.,  66,   76* 

where  the  Court  said  : 

"  In  making  the  apportionment  (  of  the  assessment )  however, 
it  may  sometimes  happen  that  injustice  will  be  done  to  one  or 
more  individuals.     The  remedy  is  by  appeal  to  the  Judge  of  the 


I  r  [ 

Superior  Court.  The  obvious  imix)rt  of  the  charter  is,  that  the 
appeal  carries  up,  not  the  whole  apportionment,  but  simply  the 
apix)rtionment  to  the  api:)ellant.  The  appeal  is  allowed  '  to  any 
person  aggrieved,'  and  notice  must  be  served  upon  the  City 
Clerk.  The  city  and  not  the  other  persons  benefited,  is  the  ad- 
verse party.  If  the  Legislature  had  intended  that  there  should  be 
a  general  re-apportionment  upon  the  appeal,  it  is  fair  to  presume 
that  provision  would  have  been  made  for  notifying  the  others 
interested,  as  they  would,  in  that  event,  seem  to  have  a  greater 
interest  in  the  question  than  the  city.  Indeed,  the  city  would 
hardly  be  interested  at  all,  as  it  would  be  immaterial  to  it  who 
paid  the  assessment,  or  in  what  proportion  it  was  paid.  The 
fact  that  the  charter  makes  the  city  the  only  appellee,  is  suffi- 
cient evidence  of  an  intent  that  the  apjjeal  should  not  disturb 
the  assessment  upon  others,  and  that  the  Appellate  Court  should 
be  limited  to  re-assessing  benefits  to  the  api^ellant.  In  this  view 
of  the  case,  it  is  apparent  that  the  charter  must  have  conteni- 
plated  a  reduction  of  the  assessment  upon,  the  ap{jellant,  and  a 
consequent  reduction  of  the  whole  sum  assessed,  otherwise  the 
appeal  could  be  of  no  benefit  to  the  party  aggrieved." 

But  if  it  were  true  that  both  the  Constitution 
and  the  statute  give  a  person  the  right  to  object 
to  the  report  in  the  respects  above  pointed  out, 
then  the  law  does  provide  the  machinery  for  giv- 
ing notice  and  a  hearing  to  the  person  whose  as- 
sessment or  award  is  thus  attacked. 

If  the  statute  contemplatc-s  lliat  th(^  award  made 
to  A  by  the  report  ma\-,  upon  pctiiion  ol  I),  be 
raised  by  the  County  Court,  and  the  Court  cannot 
constitutionall)-  thus  raise  it.  without  giving  A 
notice  and  an  opportunity  to  be  Iieard  (and  I  ad- 
mit it  cannot), then  the  statute  contemplates — ^even 
though  it  mav  not,  in   terms,  so  provide — that  the 


112 

Court  shall  have  power  to  give  A  appropriate  no- 
tice and  hearing. 

In  a  case  in  Connecticut,'  where  the  statute 
provided  that  any  Judge  of  the  Superior  Court 
might,  upon  the  appHcation  of  one  partner,  ap- 
point a  receiver,  to  hold  and  dispose  of  the  estate 
of  the  partnership,  the  Court  held  that  such  an 
appointment  could  not  be  made  without  notifying 
the  other  partners  and  giving  them  an  opportunity 
to  be  heard.      The  Court  said: 

"A  receiver  was  appointed  forthwith  upon  the  application.  No 
notice  whatever  of  the  proceeding  was  given  to  the  adverse  party 
in  interest  prior  to  the  appointment.  *  *  *  We  must  hold 
this  law  to  be  a  nullity,  if  it  authorizes  such  proceedings." 

Now,  the  statute  did  not,  in  terms,  require  no- 
tice, but  the  Court  held  that  it  must  be  implied 
that,  since  notice  was  necessary,  the  Legislature 
intended  that  notice  should  be  given,  and  that  the 
Court  had  power  to  give  it.      The  Court  said  : 

"It  is  true  that  the  statute  does  not,  in  terms,  require  notice 
to  be  given,  but  *  *  *  vve  cannot  suppose  that  such  powers 
should  be  exercised  without  notice,  without  the  knowledge  even 
of  those  most  interested.  *  *  *  We  prefer,  certainly,  rather 
to  give  it  such  a  construction  as  to  require  notice  to  parties 
interested." 

The  Court  reversed  the  order  appointing  the 
receiver,  on  the  ground  "that  there  was  no  notice 
to  the  adverse  party." 

The  same  doctrine  is  laid   down   in   the  case  of 

I  Bostwick  vs.  Isbell,  41  Conn.,  305. 


113 

Wilson  vs  Karle,  42  N.  J.,  61  2,  613  ;  where  it  was 

said  : 

"There  can  be  no  doubt,  that,  in  all  such  cases,"  (where  a 
special  body,  such  as  commissioners  of  estimate  and  assessment, 
qualified  to  perform  a  quasi  judical  function,  are  authorized  to 
decide  some  matters  affecting  pecuniary  interests,)  "the  persons 
whose  interests  are  to  be  passed  upon,  should  have  the  offer  of 
a  hearing,  for  this  is  one  of  the  dictates  of  natural  justice.  So 
entirely  is  this  the  case,  that  whenever  a  statute  has  empowered 
such  judical  acts  to  be  performed,  and  has  been  silent  with  re- 
spect to  a  notification  to  the  persons  interested,  the  necessity  to 
give  such  citation  has  invariably  been  imported  in  such  legisla- 
tion by  judicial  intendment.  There  are  a  number  of  decisions 
in  this  State  maintaming  in  emphatic  terms,  this  doctrine." 

So,  also,  in  the  late  decision  of  the  Supreme 
Court  of  the  United  States  in  the  Kentucky  Rail- 
road Tax  Cases,  115  U.  S.,  321,  334.  There  the 
assessment  of  the  railroads  was  brouij^ht  for  review 
before  a  Board  of  Railroad  Commissioners,  who 
sat  as  a  Board  of  Equalization  and  corrected  and 
equalized  the  valuations.  It  was  urged  thai  no  hear- 
ing was  accorded  the  railroad  companies  by  llic 
statute,  under  which  the  taxes  were  levied,  and  that 
it  was  hence  unconstitutional  as  depriving  ihcm  ol 
their proi^erty  without  due  process  of  law.  Bui, 
the  Court  said  : 

"  If  the  pl.untiffs  in  error  have  the  constitutional  right  lo  such 
hearing,  for  which  they  contend,  the  statute  is  proi)crly  to  ho  con- 
strued so  as  to  recognize  and  respect  it,  and  not  to  deny  it.  The 
Constitution  and  the  statute  will  be  construed  together  as  one 
law.  This  was  the  principle  of  construction  applied  l)y  this 
Court,  following  the  decisions  of  the  State  Court  in  Nfitl  vs. 
Delaware  103,  N.  S.,  370,  where  words,  denying  the  right,  were 
regarded  as  striken  out  of  llie  State   Constitution   and    statutes 


114 

by  the  controlling  language  of  the  Constitution  of  the  United 
States.  And  in  the  case  of  Cooper  vs.  The  Wandsworth  Board  of 
Works,  14  C.  B.  U.  S.,  180,  in  a  case  where  a  hearing  was 
deemed  essential,  it  was  said  by  Byles  J.,  that  'although  there  are 
no  positive  words  in  a  statute  requiring  that  the  party  shall  be 
heard,  yet  the  justice  of  the  common  law  will  supply  the  omis- 
sion of  the  Legislature  '  " 

If  ic  bs  concede  J,  in  this  case,  that  the  County 
Court  has  power — ^jurisdiction — to  raise  the  assess- 
ment or  lower  the  award  of  any  person  on  the 
appHcation  of  another,  and  that  this  power  cannot 
be  rightfully,  constitutionally  exercised  without 
giving  the  person  attacked  notice  and  a  hearing, 
then  the  law  (though  this  particular  statute  be 
silent  on  the  subject)  gives  the  Court  the  power  to 
give  appropriate  notice  and  hearing.  In  this 
Stale,  "when  jurisdiction  is,  by  any  statute,  con- 
ferred on  a  Court,  all  the  means  necessary  to  carry 
it  into  effect  are  also  given;  and,  in  the  exercise  of 
the  jurisdiction,  if  the  course  of  proceeding 
be  not  specifically  pointed  out  by  the  statute,  any 
suitable  process  or  mode  of  proceeding  may  be 
adopted  which  may  appear  most  conformable  to 
the  spirit  of  the  Code  of  Civil  Procedure."' 

This  provision  has  been  frequently  applied 
where  a  law  conferred  a  jurisdiction,  but  pro- 
vided no   manner  of  exercising  it.^ 

C.  C.  P.,  Sec.  18. 
zMawson  vs.  Mawson,  150  Cal.,  539. 
Estate  of  McCauley,  Id.,  544. 
Thompson  vs.  White,  63  Cal.,  505. 


"5 

I  conclude,  thetefore,  first,  that  the  Constitution 
does  not  require,  and  the  statute  does  not  grant, 
the  right  to  one  land-holder  in  the  district  to  at- 
tack, individually,  the  assessment  or  avvard  made 
to  any  other  land-holder;  and,  secondly,,  if  it  does, 
the  law  provides  that  the  Court  niay,  by  appropri- 
ate process,  bring  the  party  thus  attacked  into 
Court. 

d.  If  any  person  in  interest  should  petition  the 
Court  to  dismiss  the  whole  proceeding,  on  the 
ground  of  want  of  jurisdiction,  or  for  fraud,  or  an\- 
other  cause,  must  all  the  other  j>ersons  in  tlic  dis- 
trict be  individually  notified?  If  the  principles 
which  I  have  hereinabove  sought  to  maintain  are 
sound,  it  is  clear  that  they  need  not.  It  is  e\idcnt 
that,  in  resisting  an  attack  of  this  kind,  the  Board 
of  Commissioners  represent  the  con\mon  interest 
of  the  whole  district. 

I  submit,  therefore,  that  notice  is  proxidcd  for 
every  possible  contingency,  and  that  tin-  objection 
of  the  plaintiffs,  that  the  statute  is  uncoiistiiiitional, 
because  it  does  not  aftonl  the  parties  in  interest 
the  n(jtice  to  which  they  are  (-ntitlfd,  is  untenable. 

The  opinion  of  Mr.  lusticc!  McKt'e,  in  Mit//ioan 
vs.  Smith,  is  cpioted  at  length  as  "showing  conclu- 
sively that  the  notic-  provided  \nv  was  not  due 
notice  or  due  'process  ol   law.'" 


ii6 

As  I  understand  that  opinion,  it  is  not  a  deci- 
sion that  the  twenty  days'  notice,  required  by  sec- 
tion seven,  is  not  a  sufficient  notice  of  a  hearing 
before  the  County  Court,  but  simply  that  the  tax- 
payer never  had  notice,  nor  an  opportunity  to  be 
heard  anywhere,  upon  the  question  of  the  suffi- 
ciency of  the  petition  presented  to  the  Mayor, 
and,  consequently,  could  not  be  bound  by  any 
adjudication  determining  the  petition  to  be  suffi- 
cient. Nowhere  in  the  opinions  delivered,  either 
by  the  learned  Justice,  nor  by  Justices.  Sharpstein 
or  Ross,  do  1  find  it  stated  that,  if  a  proper  peti- 
tion had  been  presented  to  the  Mayor,  the  notice 
provided  by  section  seven  would  not  have  been 
due  notice  to  the  taxpayer. 

There  is  no  doubt  that  Mr.  Justice  McKinstry 
does  so  decide,  citing  Stuart  vs.  Palmer,  74  N. 
Y.,  183;  Alzirrays  Lessee  vs.  Hoboken,  18  How., 
272  ;  Cooley  on  Tax.,  266. 

The  first  two  decisions  do  no  more  than  recog- 
nize the  general  rule,  that,  in  proper  cases,  notice 
must  be  orjven. 

The  passage  in  Cooley  reads  : 

"  It  is  not  customary  to  provide  that  the  tax-payer  shall  be 
heard  before  the  assessment  is  made,  but  a  hearing  is  given  after- 
wards, either  before  the  Assessors  themselves,  or  before  some 
Court  or  Board  of  Review.  And  of  the  meeting  of  that  Court 
or  Board,  the  tax-payer  must,  in  some  manner,  be  informed, 
either   by    personal  notice    or  by    some  general  notice  which  is 


117 

reasonably  ceriahi  to  reach  him ;  or,  which  is  equivalent,  by 
some  general  law  which  fixes  the  time  and  place  of  meeting,  and 
of  which  he  must  take  notice." 

The  Qeneral  notice  which  the  learned  author  is 
here  speaking  of  is.  doubtless,  a  published  notice, 
such  as  is  provided  for  in  the  present  statute. 
Such  a  notice  is  sufficient  process  to  subject  the 
party  to  the  action  of  the  Court,  provided  it  fixes 
the  time  and  place  of  the  meeting  of  the  Court, 
or  the  time  and  place  are  fixed  by  some  general 
law. 

Apply  these  principles  to  the  present  case  :  The 
tribunal  before  which  the  tax-payer  is  authorized 
by  the  law  to  appear  is  the  County  Court.  The 
time  and  place  of  the  meeting  of  that  Court  are 
fixed  by  general  law.  The  time  in  which  the  tax- 
payer may  appear  and  file  his  petition  for  relief  in 
the  Court,  is  thirty  days  from  the  first  publication 
of  a  "  general  notice  which  is  reasonable  certain 
to  reach  him."  Of  course,  after  the  taxpayer  has 
filed  his  petition,  he  ixicomes  a  litigant  in  Court, 
and,  like  any  other  litigant,  must  give  heed  to  the 
calendar  of  the  Court,  in  order  to  learn  when  his 
cause  comes  on  loi-  hearing. 

I  humbly  submit  thai  the  process  afforded  by 
the  statute  is  (entirely  in  accord  with  the  doctrine 
of  the  foregoing  passage  of  Cooiey. 


ii8 

III.  The  Hearing  Provided  by  the  Statute 
IS  Sufficient  to  Satisfy  Every  Constitu- 
tional Requirement. 

I.  It  is  urged  that  the  parties  in  interest  had  a 
constitutional  right  to  be  heard  upon  the  question 
whether  the  improvement  should  be  made  or  not. 
It  is  claimed  that  proceedings  for  the  widening  or 
opening  of  streets,  where  private  property  is  to  be 
condemned  for  a  public  use  and  the  cost  is  to  be 
laid  upon  a  given  assessment  district,  are  judicial 
in  their  character  and  can  not  be  inaugurated  with- 
out giving  the  persons  whose  property  is  to  be 
taken,  or  made  to  bear  the  burden  an  opportunity 
to  be  heard  upon  the  question.  It  is  insisted  that, 
the  Dupont  Street  Act  gives  no  opportunity  for 
such  hearing  and  is,  therefore,  unconstitutional. 

To  this  there  are  two  answers  : 

First. — The  parties  have  no  constitutional  right 
to  be  heard  upon  the  question  of  the  propriety  or 
advisability  of  making  the  improvement.  That 
question  is  not,  in  that   sense,  a  judicial  question. 

This  proposition  has  been  established  by  abund- 
ant authority  : 

Pearson  vs.  Lable,  "]%  Ky,,  170,  173,  was  an 
action  to  recover  the  amount  apportioned  against 
certain  property  benefited  by  a  street  improve- 
ment. The  defendants  urged  that  the  property 
received  no  benefit. 


119 

Said  the  Court:  "Whether  the  property  within  the  tax  clfs- 
trict,  considered  as  an  entirety,  will  be  benefited  by  the  i)roposed 
improvement  is  a  question  to  be  decided  primarily  bv  the  L.^g- 
islature.  And  when  that  department,  whether  acting  directly  or 
through  the  local  authorities,  to  which  it  may  have  delegated  the 
power  to  determine  when  such  improvements  shall  be  made,  di- 
rects an  improvement  to  be  made,  and  the  cost  of  making  it  to 
be  assessed  upon  adjacent  property,  there  is  a  decision  by  the 
Legislature  that  the  property  within  the  district  will  be  benefited 
This  decision  will  generally  be  final  and  conclusive  upon  the 
question  of  benefits  to  the  district  as  a  whole,  and  also  that pulu 
lie  convenience  demands  that  the  improvement  be  made." 

In  matter  of  Zborowski,  68  N.  Y.,88,  97,  which 

was    an   application    to  vacate    an    assessment  for 

sewerage  purposes,  the  Court  said  : 

"  Another  point  made  is  that  no  notice  of  the  purpose  to  build 
this  sewer  was  given  to  the  appellant  before  the  work  was  begun 
and  finished.  *  *  *  j^  may  be  conceded  that 
before  an  assessment  for  the  expenses  of  the  work  is  laid,  those 
who  are  to  be  affected  thereby  shall  j'ave  notice  and  op))or- 
tunity  to  be  heard.  It  is  not  alleged  in  this  case,  that  it  was 
otherwise  than  that.  The  complaint  is  that  no  notice  was  given 
of  the  purpose  to  build  this  sewer.  We  do  not  think  (hat 
notice  was  a  legal  prerecjuisite." 

In  matter  of  De  Peyster,  68  N.  Y.,  88.  9;.  the 
decision  In  Re  Zborowski  was  recoL,nii/c'd  and  fol- 
lowed upon  the  point  tliat  "  a  determination  of  a 
mimicipality  to  enter  upon  a  woi'k  of  loi  ,il  impi-o\(*- 
nient  is  not  inxalid  for  lack  ol  prioi"  iioiiic  i(> 
owners  of  property  to  l)e  aflccicd,  of  an  inicntlon 
so  to  do." 

JfoU  vs.   The  City,  127  Mass.,   408, 

Certiorari    to    fjuasli   the  proceedings  of   a  City 


I20 

Council    in    laying  out  and  constructing    a    public 

park. 

"It  is  contended,"  said  the  Court,  "that  the  parties  assessed 
were  entitled  to  notice  of  the  intention  to  levy  the  assessment, 
and  opportunity  to  be  heard,  and  that  those  whose  lands  were 
taken,  were  entitled  to  notice  of  the  taking.  But  the  Statute 
does  not  require  notice  either  of  the  taking  or  of  the  intention 
to  levy  the  assessment,  and  the  rights  of  those  whose  lands  are 
taken,  or  whose  property  is  assessed  is  amply  secured  by  the 
opportunity  to  appeal  to  a  jury  if  they  are  dissatisfied.  Upon 
the  question  of  the  necessity  of  taking  private  property  for  piiblic 
use,  parties  interested  have  no  constitutional  right  to  be  heard. 
The  authority  to  determine  that  question  is  in  the  State,  or  in 
tribunals  to  whom  the  State  has  delegated  the  power.  The  ap- 
propriation of  the  property  is  an  act  of  public  administration, 
and  the  form  and  manner  of  its  performance  is  such  as  the  Leg- 
islature may,  in  its  discretion  prescribe.  *  *  *  In 
the  exercise  of  the  right  of  eminent  domain,  the  power  to  take 
private  property  for  a  public  park  is  not  open  to  question. 
There  are  considerations  affecting  the  health  and  comfort  of  a 
dense  population,  which  the  Legislature  in  such  cases  may  well 
regard  as  sufficient  to  create  the  public  necessity.  Its  judgtneiit 
as  to  the  existence  of  the  exigency,  when  fairly  exercised,  is  not 
to  be  revised  by  the  Courts. " 

,B7'ewster\^.  Syracuse,  19  N.  Y.,  116. 
Action  to  enjoin  the  collection  of  a  special  assess- 
ment   for  constructing  a   sewer,    to    which    a   de- 
murrer was  interposed  and  overruled,  the  defendant 
appealing. 

Said  the  Court :  "  It  would  *  have  been  within  the  clear 
authority  of  the  Legislature,  to  have  authorized  the  City  govern- 
ment of  Syracuse,  without  the  consent  of  any  person  specially 
interested,  to  construct  the  sewer,  and  to  assess  by  way  of  tax, 
the  expenses  on  such  persons  as  ought,  in  the  judgment  of  the 
Legislature  to  bear  that  burden,  and  it  does  not  at  all  follow  from 
the  fact  that  the  Charter  of  Syracuse   required  as  a  preliminary 


121 

to  the  action  of  the  Common  Council  that  the  consent  of  a  ma:- 
jority  of  the  property-owners  to  be  benefited  should  first  beob- 
tained,that  the  contract  entered  into  by  the  City  with  the'construct- 
ors  of  the  sewer,  is  to  be  deemed  a  contract  between  the  property- 
owners  and  the  constructors.  The  property-ownerswere  not  in 
any  sense  parties  to  the  contract.  Their  consent  to  the  building 
of  the  sewer,  though  a  necessary  condition  to  the  exercise  of  the 
power  actually  conferred  by  the  Legislature  on  the  City  Govern- 
ment, was  not  at  all  necessary  to  the  complete  autboyity  of  the 
Legislature  over  the  whole  subject.  The  taxation  of  the  indi- 
viduals interested  in  regard  to  this  sewer  stands  on  the  same 
footing  as  all  other  taxation  by  authority  of  the  Legislature." 

In  People  vs.  Smith,  21  N.  Y.,  595,  which  Was 
a  petition  for  certiorari  to  review  procef^'dirtg^'in 
laying  out  a  highway,  the  Court  said  :      "  '' 

"  The  question  is,  whether  the  State  in  the  exercise  of  the 
power  to  appropriate  the  property  of  individuals  to  a  publiq  use, 
where  the  duty  of  judging  of  the  expediency  of  making  the  ap- 
propriation in  a  class  of  cases  is  committed  to  jjublic  officers,  is 
obliged  to  affoid  to  the  owners  of  the  property  an  opportunity 
to  be  heard  before  those  officers,  when  they  sit  for  Uie  purpose 
of  making  the  determination.  I  do  not  speak  now  of  the  i)ro- 
cess  for  arriving  at  the  amount  of  compensation  to  be  paid  to 
the  owners,  but  of  the  determination  whether  und»j*r  the  circum. 
stances  of  a  particular  case,  the  property  re(iuired  for  the  puri)ose 
shall  be  taken  or  not,  and  I  am  of  opinion  that  the  Stale  is  not 
under  any  obligation  to  make  provision  Uix  a  judicial  contest 
upon  that  question.  *  *  The  necessity  for  aj.propriating 
private  property  for  the  use  of  the  public  or  of  the  Covernment 
is  not  a  judicial  question.  The  power  resides  in  the  Legislaiute. 
It  n.ay  be  exercised  by  means  of  a  statute,  whicli  shall  at  once 
designate  the  property  to  l)e  appnjpriatcd,  and  the  purpose  of 
the  appropriation,  or  it  may  be  delegated  to  public  officers,  or 
as  it  has  been  repeatedly  held,  to  i)rivate  corporations  cslab. 
lished  to  carry  on  enterprises  in  which  the  public  arc  interested, 
*  'Iliere  is  no  restraint  ujKjn  the  power,  excei)t  that  rcfpiiring 
compensation  to  be  made.  *  *  It  (the  Legislature)  may  al. 
low  the  owner  to  intervene  and  participate  in  the  discussion  be- 


122 

fore  the  officer  or  board  to  whom  the  power  of  determining 
whether  the  appropriation  shall  b  j  made  in  a  particular  case,  or 
it  may  provide  that  the  officers  shall  act  upon  their  own  views 
of  propriety  and  duty  without  the  aid  of  a  forensic  contest.  The 
appropriation  of  the  property  is  an  act  of  public  administration, 
and  the  form  and  manner  of  its  performance  is  such  as  the  legis- 
lature shall,  in  itb  discretion,  prescribe." 

Ice  Works  vs.  City  of  Lockport,  28  Hun.,  g,  an 
action  to  recover  back  money  paid  under  an  assess- 
ment for  the  construction  of  a  sewer,  which  was 
claimed  to  be  invaHd,  because  the  ordinance 
authorizing  the  work  was  passed  without  notice  to 
the  plaintiff  and  without  affording-  her  an  oppor- 
tunity to  be  heard,  it  was  said  : 

"  As  to  the  want  of  notcie,  it  is  true  that  no  notice  was  given 
of  the  action  of  the  Common  Council  in  defining  the  real  estate 
which  they  deemed  benefited  by  the  proposed  improvement ; 
nor  do  we  understand  that  such  notice  is  requisite  under  the 
charter.  *  The  only  notice  required  by  the  charter  is  of  the 
assessment,  and  that  was  given  in  the  mode  prescribed.  *  * 
Where  notice  of  the  assessment  is  provided  for,  we  are  not 
aware  that  an  omission  in  the  statute  to  provide  for  notice  of  the 
preliminary  proceeding  defining  the  area  to  be  benefited  by  the 
proposed  improvement,  has  been  held  to  render  the  statute  un- 
constitutional.'' 

The  plaintiffs  rely  for  support  upon  a  couple  of 
cases  in  New  Jersey.  These  cases  stand  alone. 
They  proceed  upon  the  assumption  that  proceed- 
ings for  opening  or  widening  streets  are  strictly 
judicial  in  their  charter.  This  contention  is  disposed 
of  by  the  remarks  of  the  Court  in  matter  of 
Zborowski  68  N.   Y.,  97,  where  it  is  said  ; 


123 

"The  appellant  cites  authorities  from  which  we  will  not  dissent, 
that  no  judicial  proceedings  can  be  taken  by  which  the  property 
of  any  one  will  be  affected,  without  notice  first  given  him.  He 
also  cites  authorities  from  which  we  will  not  dissent,  that  muni- 
cipal bodies,  in  devising  the  plan  of  street  and  other  improve- 
ments, act  judicially  and  not  ministerially.  We  conceive  that 
the  phrase  "judicial  "  is  not  used  in  the  same  sense  in  the  two 
classes  of  cases.  In  the  first  class,  the  term  is  used  of  such 
bodies  or  officers  as  have  the  power  of  adjudication  upon  the 
rights  of  persons  and  property.  In  the  second  class,  it  is  used 
to  express  an  act  of  the  mind  or  judgment  upon  a  proposed 
course  of  official  action  as  to  an  object  of  corporate  power,  for 
the  consequences  of  which  the  official  will  not  be  liable,  though 
his  act  may  not  be  well  judged,  as  differing  from  a  ministerial  or 
physical  act  of  an  official,  for  which,  if  negligently"  done,  he  or 
his  superior  will  be  held  to  answer.  We  do  not  think  that  the 
determination  of  a  municipality  to  enter  upon  a  work  of  local 
improvement  is  invalid  for  the  lack  of  prior  notice  of  intention 
so  to  do,  to  the  owners  of  property  to  be  affected." 

Secondly.— -\{  the  parties  were  entitled  to  be 
heard  before  the  Board  of  Supervisors  upon  the 
question  of  the  expediency  of  orderini^  the  im- 
provement, then,  they  had  botli  notice  and  oppor- 
ttmity  of  such  hearing-.  The  ordinance-  declarinL;- 
the  intention  of  the  I)oard  to  proceed  with  the  im- 
provem(-nt  was  pubhshed  for  five  days  alter  it  had 
passed  to  print  and  before  it  was  fnially  adopictl. 
The  sole  object  of  this  puljh'cation  was  to  t^i\'c  no- 
tice of  the  contemijlat(.'d  aclion  ol  ih<-  lioard  and 
to  afford  all  parties  an  <)i)i)()riuniiy  i<>  apjJ.Mi-  at 
the  n('xt  m(-etin^^  and  be  heard  upon  the  subjeci 
of  the  hnal  [)assaj^re  of  the  ordinance. 

2.      It  is  next  contended  b\   Un-  learned  coimsel 


124 

for  the  plaintiffs  in  their  brief  in  reply,  pp.  i8  and 
25,  that  "  the  property  owners  affected  by  this  as- 
sessment, were  entitled  to  be  heard  before  the 
Commissioners,  or  before  the  County  Court,  upon 
the  question  as  to  whether  or  not  the  Commission- 
ers were  invested  with  jurisdiction  and  authority  to 
make  the  assessment,  by  the  passage  of  a  proper 
resolution  or  ordinance  by  the  Supervisors  and  by 
the  other  preliminary  steps  required  to  be  taken 
before  the  assessment  was  made  ;"  they  "  had  a 
right  to  be  heard  as  to  the  validity  of  the  statute 
authorizing  the  assessment,  the  authority  of  the 
Board  to  make  it,  their  fraud,  misconduct  and 
errors  in  making  it,  the  equality  and  fairness  of  it, 
and  the  justice  and  propriety  of  the  changes  made 
in  it  after  it  was  reported,  so  far  as  it  affected  his 
liability.     '"  *  *  To    do  complete   jus- 

tice, therefore,  and  to  constitute  due  process  of  law, 
the  right  of  each  property-owner  to  be  heard 
should  have  been  continued  until  the  final  confir- 
mation of  the  report." 

The  learned  counsel  contend  that  the  Dupont 
Street  Act  denies  this  hearing  and  is,  therefore, 
"an  unconstitutional  and  void  act." 

To  this  I  answer  : 

I  fully  admit  the  right  of  the  parties  in  interest 
to  the  complete  hearing  which  the  learned  counsel 
claim  for  them.  I  fully  admit  their  right  to  such 
hearing   before  judgment    is   pronounced   against 


12 


them  condemning  their  property  for  a  pubHc  use, 
or  burdening  it  with  the  cost.  I  fully  admit  that, 
before  the  County  Court,  the  parties  were  entitled 
to  be  heard  if  they  so  desired,  to  urge  in  opposition 
to  a  confirmation  of  the  report,  that  the  Statute 
was  invalid  ;  that  the  Board  of  Supervisors  had 
not  passed  the  requisite  ordinance  or  resolution 
which  was  to  inaugurate  the  proceedings ;  that 
the  Commissioners  had  not  acquired  jurisdiction 
of  the  matter ;  that  the  assessment  was  tainted 
with  fraud;  in  fine,  anything  which  would  impeach 
the  validity,  legality  or  justness  of  the  assessment, 
and  would  be  a  reason  for  denying  its  approval  or 
confirmation. 

P)Ut,  I  do  not  assent  to  the  contention  that  this 
full  and  complete  hearing  is  denied  by  the  Statute. 
On  the  contrary,  there  is  not  a  word  in  the  Stat- 
ute evincing  any  intention  on  the  part  of  the  Leg- 
islature to  restrict  or  take  away  the  right  to  this 
complete  hearing.  If  the  right  to  this  hearing  is, 
as  plaintiffs  contend,  a  constitutional  right,  the 
mere  silence  of  the  Statute  does  not  lak<'  it  away 
or  abridge  it.  The  Constiluu'on  and  the  .Statute 
must  b(-  n^ad  tO"-elher  ;  and  ilu;  ri'dus  L^uaranteed 
by  the  higher,  held  to  be  blended  with  and  inse|)- 
erable  from  those  conferred   b\   ih(r  inferior  law. 

This  [proposition  has  been  already  sutficiently 
elaborated,  and  it  is  unnecessary  to  dwell  up(jn  it 
further. 


126 

The  uniform  practice  in  the  Courts  of  San  Fran- 
cisco, in  cases  Hke  the  present,  has  been  to  hear 
the  parties  in  interest  upon  all  the  points  enumer- 
ated by  counsel  here  ;  and  the  cases  are  numerous, 
in  which  proceedings  similar  to  these  have  been 
quashed  by  the  County  Court  on  the  ground  that 
the  Statute  was  unconstitutional,  or  the  procedings 
void  for  want  of  jurisdiction,  or  irregular  and 
violative  of  the  provisions  of  the  law,  and  the 
like. 

Indeed,  in  this  very  case,  it  was  considered  by 
everybody  that  all  possible  objections  tending  in 
any  manner  to  show  the  illegality  or  injustice  of 
Commissioners'  proceedings  could  be  urged  in  the 
County  Court  against  the  confirmation  of  their  re- 
port. By  referring  to  the  transcript  we  find  that, 
on  the  20th  of  October,  1876,  James  Phelan,  by 
his  attorneys,  Jarboe  &  Harrison,  filed  his  object- 
ion to  said  report  on  the  grounds  that  :  ist.  "  The 
Board  of  Supervisors  had  never,  by  resolution  or 
order,  expressed,  in  any  form,  that  it  was  their 
judgment  that  it  would  be  expedient  that  Dupont 
Street  be  widened,"  &c.  2nd.  "  The  said  Board 
of  Dupont  Street  Commissioners  have  never  pub- 
lished the  notices  provided  by  Section  One  of  said 
Act,"  &c.  3rd.  "  Nine  per  cent,  and  upwards  of 
the  entire  cost  of  the  proposed  improvements,  for 
conjectural  expenses  that  may  never  arise,  and 
which  are  not  shown    to    have    any  foundation  in 


127 

fact,  or  to  be  based  upon  any  fact  or  principle,  is 
greatly  in  excess  of  what  ought  to  be  allowed," 
&c.  4th.  "  The  assessment  or  appraisment  of  ben- 
efits against  ^  *  '"  petitioner  as  shown 
by  the  said  report  is  unjust,  relatively  unequal  to 
the  amount  assessed  to  other  lots," &c.  5th.  "The 
Act  of  the  Legislature  under  which  the  proceed- 
ings of  said  Commisioners  have  been  taken  is  un- 
constitutional and  void,"  &c.  [Trans.,  pp.  266, 
277.J 

On  the  same  clay,  a  similiar  petition  was  filed  on 
behalf  of  Thos.  Blythe,  by  H.  H.  Haight.  his  at- 
torney. [Trans.,  pp.  277-286,]  and  by  various 
other  parties.      [Trans.,  286-305.] 

Some  of  these  objections  were  deemed  by  the 
Court  well  founded.  Others  were  thought  ill 
founded  and.  therefore,  overruled.  [Trans..  i)p. 
308-316.] 

It  appears,  therefore,  that,  in  practice,  both 
bench  and  bar  concurred  in  giving  to  this  Act  such 
a  construction  as  would  afford  objecting  partitas 
the  anifjle  and  full  hearing  clainn.'d  by  counsel 
here  to  b(;  guaranteed  as  a  consiliuiional  right. 

It  is  now  claimed  that  the  slaliilc  restricts  ihe 
hearing  to  objections  apixiaring  u|»on  the  Lice  of 
the  report.  This  claim  is  based  upon  the  language 
of  the  statute; —"  .ni\  person  feeling  himself  ag- 
grieved by  the  action  ch"  determination  of  the  s.iid 
Board,  as  shown  in  I  he  report^'  may  ai)i)ly  by  pe- 


128 

tition,  &c.  It  is  said  that  the  words  "as  shown  in 
such  report "  indicate  that  no  action  or  determin-. 
ation  of  the  Board  which  is  not  shown  in  the  report 
can  be  made  the  ground  of  objection.  But,  this  is 
a  very  clear  misapprehension.  The  language  just 
used  is  descriptive  of  the  persons  who  may  object, 
but  not  of  the  character  of  the  objections  which 
may  be  made.  That  is  found  further  down,  where 
it  is  said  the  petitioner  shall  "set  forth  his  interest 
in  the  proceedings  had  before  said  Board,  and  his 
objections  thereto."  This  latter  language  describes 
the  character  of  the  petition  and  its  contents. 
Under  it,  all  that  a  petitioner  has  to  show  or  state 
is  that  his  property  is  affected  by  the  proceedings 
had  before  the  Board  of  Commissioners,  and  the 
reason  and  grounds  of  objection  thereto.  The 
statute  does  not  undertake  to  define  what  ob- 
jections shall  be  made  ;  nor  does  it  in  any  manner 
restrict  the  nature  or  character  of  the  objections 
that  may  be  urged. 

Clearly,  I  repeat,  the  words  "  any  person  feeling 
himself  aggrieved  by  the  action  or  determination 
of  the  said  Board  as  shown  in  said  report "  are 
merely  descriptive  of  the  persons  who  may  object, 
and  are  intended  to  confine  the  class  of  objectors 
to  those,  who,  upon  the  face  of  the  report,  appear 
to  be  affected  by  the  proceedings,  and  to  exclude 
outsiders,  who  might  consider  themselves  inci- 
dentally   and    indirectly    affected    by    the    report. 


129 

But,  these  words  do  not  restrict  the  right  of  such 
persons  to  make  any  objections  they  may  deem 
proper  against  "  the  proceedings  had  before  such 
Board."  Of  course,  none  of  the  parties  directly 
affected  by  the  proceedings  of  the  Board  have  any 
interest  to  object,  unless  they  feel  aggrieved  by 
determination  of  the  Board  appearing  and  s/ioiun 
in  their  report.  If  the  report,  so  far  as  it  concerns 
them,  is  satisfactory,  what  motive  can  they  have 
to  object  ?  If  the  award  of  damages,  or  the  as- 
sessment of  benefits  made  to  them,  as  shown  in 
the  report,  is  entirely  satisfactory  to  them,  how  can 
they  feel  themselves  aggrieved  ?  No  defect 
or  irregularity  that  does  not  culminate  in  some- 
thing which  appears  upon  the  face  of  the  report, 
can  possibly  grieve  them.  Therefore,  only  those 
who  deem  themselves  aggrieved  by  the  determin- 
ation of  the  Board  as  to  damages  and  benefits,  as 
shown  in  their  report,  can  possibly  object  to  the 
report.  But,  when  they  deem  themselves  thus 
aggrieved,  they  may  make  any  objection  they 
please  to  the  proceedings  of  the  Board.  Whether 
they  feel  aggrieved  or  not,  is  not  a  disputable  fact. 
Therefore,  the  descripliv(!  words  used  really  \>('X- 
niit  all  persons  in  llie  district  to  file  objections,  if 
they  jjlease. 

Paraphrase  the  language  of  the  statute  and  it 
clearly  comes  to  this  :  "  Any  person  who  aiijuNirs 
upon    the   face   of  the   report  of  the   Board  to  be 


I30 

affected  by  the  proceedings,  and  who  is  dissatisfied 
with  and  unwilHng  to  accept  or  acquiesce  in  the 
award  of  damages  or  the  assessment  of  benefits 
made  to  him  upon  the  face  of  the  report,  may  op- 
pose the  confirmation  of  the  report,  and  set  forth 
and  urge  in  the  County  Court  his  objections  to  the 
proceedings  of  said  Board." 

3.  It  is  next  urged  that  the  hearing  of  the  par- 
ties in  interest  was  confined  to  the  unsubstantial 
point  of  bringing  the  report  into  Court,  and  did 
not  extend  to  the  substance  of  the  report  itself. 

To  this  I  answer  : 

A  hearing  is  granted  to  a  person  whose  prop- 
erty is  sought  to  be  affected  or  charged,  when- 
ever, before  the  valuation  or  charge  becomes 
finally  fixed  and  determined,  he  is  given  a  right 
to  appear  before  an  appropriate  officer,  Board  or 
Court,  and  contest  it. 

"It  cannot  be  material,"  says  this  Court,  i  "that  the  landowner 
had  no  notice  before  the  proportional  benefit  to  his  land  was 
estimated  by  the  commissioners,  if,  in  the  subsequent  action,  he 
has  had  his  day  in  Court,  with  full  opportunity  to  contest  this 
charge  before  it  was  declared  a  lien  upon  his  land  or  a  judgment 
to  be  collected  out  of  his  general  property," 

"In  some  States,"  says  the  Supreme  Court  of  the  United 
States,  "  the  assessment  may  be  revised  by  proceedings  in  the 
Court,  and  be  there  corrected  if  erroneous,  or  set  aside  if  invalid, 
*  *  *  In  such  cases  all  the  opportunity  is  given  to  the  tax- 
payer to  be  heard  respecting  the  assessment,  which  can  be 
deemed  essential  to  render  the  proceedings  due  process  of  law."2 

1  Rev.  Dist  vs.  Evans,  61  Cal.,  107. 

1  Hagar  vs.  Reclamation  District,  III  U.  S.,  710. 


131 

In  the  present  case,  the  Board  of  Commis- 
sioners acted  as  assessors  and  appraisers.  They 
made  their  assessment  and  vakiation  in  the  form 
of  a  report,  in  which  the  property  to  be  taken  and 
charged  was  described,  and  the  name  of  the 
owner,  when  known,  was  set  down.  This  assess- 
ment had  no  legal  validity,  and  was  binding  upon 
no  one,  until  it  was  approved  and  confirmed  by 
the  judgment  of  the  County  Court.  That  Court 
was  the  tribunal  which  finally  determined  the 
extent  of  the  valuation  or  charge  upon  the  i)rop- 
erty.  If  the  land-holder  is  granted  a  hearing 
before  that  tribunal,  the  constitutional  provision, 
which  requires  a  hearing  to  be  accorded,  is  satis- 
fied. 

The  statute  here  provides  that  the  owner  may 
"  apply  by  petition  to  the  County  Court,  setting 
forth  his  interest  in  the  proceedings  had  before 
said  Board,  and  his  objections  thereto."  'I'he 
Court  is  "authorized  and  empowtM-ed  to  hear  sai<l 
petition."  and  to  set  a  day  for  the  hearing.  I'lie 
Board  is  notified,  and  may  answj.T  the  petition 
and  appear  by  counsel.  When  the  day  set  ar- 
rives, "testimony  may  be  tak('n  by  .said  Court 
upon  said  hearing,  and  lh«-  process  of  llie  Court 
may  be  used  to  compel  the  alteiidanre  ol  wit- 
nesses an  1  the  production  of  books,  or  pai)crs.  or 
maps  in  the  custody  of  said    Hoard,  or  otherwise." 


132 

Pausing  here,  and  reserving  for  future  consider- 
ation the  question  of  the  rehef  to  be  granted,  I 
ask  :  Is  not  this  a  hearing — all  the  hearing  neces- 
sary ?  To  illustrate:  A's  land  is  assessed  $1000, 
and  he  feels  aggrieved,  deeming  that  it  ought  to  be 
assessed  $500  only  ;  he  files  his  petition,  setting 
forth  that  his  objection  to  the  report  is  that  it 
assesses  his  land  at  $1000,  when,  in  truth,  it 
ought  to  be  only  $500  ;  the  Board  appear  and 
deny  his  averments  ;  the  issues  thus  joined  come 
on  to  be  tried  before  the  Court  ;  by  means  of  the 
process  of  the  Court,  the  contestant  produces  all 
the  witnesses  he  desires  to  summon,  and  all  the 
books,  papers  or  maps  in  the  custody  of  the  Board 
or  otherwise  ;  the  Court  hears  all  his  evidence  and 
listens  to  all  his  argunients  adduced  in  favor  of 
reducing  his  assessment. 

What  more  or  greater  hearing  than  this  can  be 
given  ? 

Of  course,  a  hearing  would  be  a  mockery,  if  it 
could  not  be  followed  by  relief;  and  the  question 
here  arises:  Can  the  Court,  after  this  hearing, 
afford  relief  commensurate  with  the  issues  tried  ? 
It  is  contended  by  the  plaintiff  here  that  it 
can  not.  It  is  asserted  that  the  statute 
means  that,  after  all  this  elaborate  preparation — 
petition,  answer,  testimony,  trial — the  Court  is 
bound  to  leave  the  complainant  just  where  it 
found  him.      The  complainant,    we    will   suppose, 


^33 

sets  forth  his  grievance,  he  proves  it  to  the  satis- 
faction of  the  Court ;  the  Court,  after  solemn  trial, 
concludes  that  his  cause  is  just.  Does  the  statute 
mean  that  the  conclusion  thus  reached  is  to  re- 
main locked  up  in  the  breast  of  the  Court  ?  That 
it  shall  not  avail  the  party  before  it?  So  to  con- 
strue the  statute  would  be  unreasonable,  if  it  can 
be  avoided.  It  is  the  duty  of  Courts  to  give  laws 
a  reasonable  construction.  It  is  reasonable  to 
suppose  that  when  a  trial  by  a  Court  of  an  issue 
is  provided  for,  it  is  meant  to  be  followed  by  a 
judicial  decision  commensurate  with  the  nature  of 
the  contest.  The  contrary  would  be  abhorrent 
to  common  sense,  and  would  make  a  theatrical 
farce  of  judicial  proceedings. 

Does  the  statute,  then,  upon  a  fair  construction, 
authorize  the  Court  to  grant  a  i)etitioner  the  relief 
which  the  statute  permits  him  to  i)ray  for  and  to 
establish  his  claim  to?  Undoubtedly,  ilu-  phrase- 
ology of  the  statute  is  somewhat  obscure  ;  still  its 
meaning  is  sufficiently  plain. 

The  upshot  of  the  petition  and  hearing  can  not 
be  as  contended  by  th(-  plaintiff  here,  (iiricf,  p.  25) 
simply  to  have  the  report  brought  into  lli«'  C  oiiiily 
Court  ;  for,  the  re[)ort  must  Ix:  presciiicd  ihcrc,  in 
any  event,  petition  or  no  petition.  Nor  ran  it  be 
simply  to  bring  into  Conn  the  "documents  or 
data  as  may  be  pertinent  thereto"  ;  (or.  these  may 
be  brought  into  Court  at  the  hearing,    ijy    i)roce.ss 


^34 

of  the  Court  for  the  "production  of  books,  or  pa- 
pers, or  maps  in  the  custody  of  said  Board,"  In- 
deed, under  this  head,  no  reason  is  perceived  why 
the  Court  may  not,  upon  the  hearing  of  the  peti- 
tion, order  by  its  process  the  production  into  Court 
of  the  report  itself  as  a  "  book  or  paper  in  the  cus- 
tody of  said  Board,"  Why  should  it  not  ?  Cases 
may  readily  be  imagined  when  the  report  would 
be  absolutely  necessary  to  a  proper  hearing  of  the 
petition. 

It  is  obvious  that  the  end  of  the  proceedings  is 
found  in  the  following  words  of  the  statute  : 

"  The  Court  shall  have  power  to  approve  and  confirm  said 
report,  or  refer  the  same  back  to  said  Board,  with  directions  to 
alter  or  modify  the  same  in  the  particulars  specified  by  the 
Court  in  the  order  referring  the  same  back ;  and  thereupon  said 
Board  shall  proceed  to  make  the  alterations  and  modifications 
specified  in  the  order  of  said  Court." 

It  is  clear,  I  submit,  that  if  these  powers  of  the 
Court  with  reference  to  alteration  and  modification 
are  not  to  be  exercised  in  the  case  that  I  have 
stated,  of  a  petition  by  an  aggrieved  party,  they 
can  not  be  exercised  at  all,  and  this  portion  of  the 
statute  is  meaningless.  For,  the  Court  has  no 
power  to  modify  or  alter  the  report,  if  no  objection 
to  it  is  made.  When  no  objection  is  made,  the 
Board,  of  course,  are  satisfied  with  the  report,  for 
it  is  their  production  ;  and,  in  the  absence  of  ob- 
jections, they  themselves  present  it  "with  a  peti- 
tion to  the  Court,  that  the  same  be   approved  and 


confirmed  by  the  Court."  The  property  owners 
are  in  law  deemed  satisfied  with  it,  since,  having 
been  notified  to  examine  it  in  the  ofiice  of  the 
Board,  they  have  found  no  fault  with  it,  or  have 
been  content  to  accept  it  without  examination.  In 
the  absence,  therefore,  of  any  objection,  the  judg-- 
ment  pronounced  by  the  Court  confirming  the  re- 
port, is  a  judgment  by  consent — a  judgment  by 
default  against  parties  who,  having  been  cited  to 
set  forth  their  objections,  remain  silent.  To  modi- 
fy or  alter  a  report  with  which  every  person  in 
interest  is  satisfied,  is  not  within  the  attributes  of 
the  Court ;  and  is  evidently  not  in  the  contempla- 
tion of  the  statute. 

When  there  is  a  petition,  the  petition;!r  complains 
of  the  report,  and  sets  forth  thitan  assessmrnl  ilu-rc- 
in  contained  shoulJ  be  lowt-.red,  or  an  award  ol  tlam- 
ages  shouLl  be  raised;  having  in  view  the  power  of 
the  Court  to  modify  and  alter  the  report,  llic  pcii- 
ioner  prays  that  the  report  be  brought  into  Court  t(»r 
the  purpose  of  being  altere  1  or  modified  in  tlic  par 
ticulars  specified;  issue  ijeing  joined  by  the  Ho.u'd 
upon  the  petition,  a  hc-aring  is  iiad  upon  the  issue, 
whether  the  assessment  b(j,  indeed  lo  higli,  or  liu; 
award  Umj  low;  witnesses  are  sworn;  all  the  "books, 
papers,  and  maps  in  the-  custotly  of  said  I)oard" 
are  brought  before  the  Court  ;  th<-reupon,  the 
Court,  if  satisfied  of  the  justice  of  j.elitioner's 
claim,  orders  the  l)oard  lo  bring  the  report  beloro 


136 

it,  and  then  refers  it  back   to  the   Board  to   make 
the  proper  alteration  and  modification. 

This,  I  submit,  is  the  reasonable  meaning  of  the 
statute.  It  gives  effect  to  every  part,  and  does 
violence  to  none.  It  conforms  to  the  ordinary  and 
logical  mode  of  procedure,  and  avoids  the  absur- 
dity of  a  solemn  trial  terminating  without  a  judg- 
ment. 

And  this  was  the  construction  placed  upon  the 
statute  by  the  County  Court  and  the  parties  who 
appeared  before  it.  By  reference  to  the  Tran- 
script we  find  that,  on  the  20th  day  of  October, 
1876,  Thomas  H.  Blythe  filed  his  objections  to 
the  confirmation  of  the  report  [Trans.,  pp.  277- 
286].  On  the  same  day  the  Court  made  an  order 
setting  the  petition  down  for  hearing  on  the  27th 
day  of  October,  1876,  and  the  order  proceeds 
"that  said  Board  be,  and  it  is  hereby  required,  to 
file  with  this  Court,  on  or  before  the  time  set  for 
the  hearing  of  said  petition  as  aforesaid,  the  report 
of  said  Board,  with  the  maps,  plans,  diagrams  and 
data  used  by  said  Board  In  preparing  said  report" 
[pp.  293-294J.  The  same  order  was  made  in  the 
case  of  the  other  objecting  parties,  and,  in  obedi- 
ence to  said  order,  the  Board  did  file  with  the 
Court  Its  report  and  the  documents  and  data  per- 
tinent thereto  [p.  305]. 

Then,  on    the    i8th   of   December,    1876,   upon 
the  hearing  of  said  petition  and  objections,  It  was 


^Z7 

•'ordered  that  said  report  be.  and  the  same  is 
hereby  referred  back  to  said  Board  of  Dupont 
Street  Commissioners,  and  that  said  Board  be  and 
is  hereby  directed  to  alter  and  modify  the  same  in 
the  manner  followiPxg,  to  wit  :"  [p.  312.] 

4.  It  is  next  claimed  that  the  action  of  the 
County  Court  granting  relief  was  discretionary  — 
a  matter  of  grace  and  not  of  right. 

The  objection  that  "  it  was  discretionary  with 
the  Court  to  ofrant  or  refuse  the  order — if  it  was 
refused,  there  was  no  further  chance  to  be  heard," 
is  tenable  only  when  it  is  admitted  that  a  hearing 
must  be  perpetual.  The  Court  is  bound  to  hear 
the  petitioner's  objections  The  Court,  says  the 
statute,  "  shall  set  the  same  down  for  a  hearing." 
The  hearing  is  full  and  complete  ;  witnesses, 
books,  papers,  maps  in  the  custody  of  the  boartl 
or  otherwise,  may  be  produced.  After  this  ample 
hearing,  when  the  Judge  is  fully  informed,  the 
Court  may  or  may  not  grant  the  relief  sought.  It 
may  be  said  to  be  in  its  discretion  to  do  so.  when 
it  is  understood  that  discretion  means  "  to  discerne 
bv  the  right  line  of  law,  and  not  by  the  crookt.-d 
cord  of  private  opinion.  whi(  h  the  vulgar  call  dis- 
cretion."' "  The  discretion  inl<-nded  is  not  a 
capricious  or  arbiirarv  discn-lion.  l)Ul  an  impartial 
discretion,  guidiMl  and  controlled  in  its  exercise  by 

■  Co.    Litt.  227  li. 


138 


fixed  legal  principles.  It  is  not  a  mental  discre- 
tion, to  be  exercised  ex  gratia,  but  a  legal  discre- 
tion, to  be  exercised  in  conformity  with  the  spirit 
of  the  law,  and  in  a  manner  to  subserve,  and  not 
to  impede,  the  ends  of  substantial  justice."  ^ 

The  right  to  be  heard  was  absolute.  The  ob- 
taining the  relief  sought  depended,  of  course,  upon 
the  legal  discretion  of  the  Court. 

II. 

The  Proceedings  Provided  by  the  Statute  for 
THE  Widening  of  Dupont  Street  have  been 
Strictly  Followed  by  the  Board  of  Super- 
visors, THE  Board  of  Commissioners,  and  the 
County  Court. 

I  TJie  resolution  or  order  of  the  Board  of 
Supervisors  under  Section  21 . 

(a.)  On  the  27th  of  March,  1876,  the  Board  of 
Supervisors  adopted  a  resolution  which,  in  form, 
complies  with  the  requirements  of  the  statute. 
I  Trans.,  fols.  556-558.  j 

The  objection  to  the  resolution  is  that  "  it  was 
passed  only  once  in  the  Board  ;  it  was  never  pre- 
sented to  the  President  of  the  Board  for  his 
approval,  or  signed  by  him,  and  was  never  pub- 
lished, either  with  or  without  the  vote  thereon." 

The  conclusive  answer  to  this  objection  is  found 
in  the  brief  of  Messrs.  McAllister  &  Bergin,  Sec. 

^  Bailey  vs.  Taaffe,  29  Cal.,  424. 


139 

IV  ;  and   I   could   add   nothing  to   what    is   there 
stated. 

{b.)  On  the  17th  of  April,  1876,  the  Board  of 
Supervisors  adopted,  and  passed  to  print,  another 
siniilar  resolution  in  proper  form.  It  was  finally 
passed  May  ist,  and  received  the  signature  of  the 
Mayor,  May  3d,  of  the  same  year.     [Trans.,  fols. 

764,  433-435-] 

The  resolution  was  duly  published  in  the  official 
paper  of  the  Board  of  Supervisors,  on  the  iSth, 
19th,  2 1  St  and  2  2d  of  April,  and  on  the  20th  it 
was  published  in  the  supplement  to  the  ]:>a[)cr. 
[Fol.  434.] 

The  only  objection  to  this  resolution  is  the  fict 
that  it  was  published  in  a  "supplement  not  circu- 
lated co-extensively  with  the  paper."  To  this 
there  are  several  conclusive  answer's  : 

First.  The  resolution  having  been  adopted  by 
the  Board  and  signed  by  the  Mayor  as  having  been 
regularly  and  duly  printed,  the  cjuestion  of  its  hav- 
ing been  sufficiently  printed  is  no  longer  n|)('n. 
Surely,  a  person  who  relies  upon  a  resolution  or 
ordinance  of  the  Board  of  Supervisors,  whicii  ap- 
pears, by  its  records,  to  have  been  regularly  pas.sed, 
approved  and  signed,  is  not  boimd  to  prose,  it 
may  be  twenty  years  after  its  passage,  that  It  was 
printerl  the  requisite  numb'-r  of  times.  Nor  are 
his  rights  subject  to  be  forfeited,  because  il  may 
be    shown  by  parol  after   that  pe-riod  of  lime,  that 


140 

one  particular  insertion  was  defective.  If  this 
were  the  law  of  municipal  ordinances,  to  rest  upon 
thcni  would  be  worse  than  building  upon  quick- 
sand. The  Board  cannoi;  legally  pass,  nor  the 
Mayor  sign,  an  ordinance,  unless  it  has  been  duly 
printed.  Its  final  passage  by  the  Board  and  signa- 
ture b,'  the  Mayor  is  a  conclusive  adjudication  that 
It  has  been  so  printed. 
This  is  settled  law. 

City  of  St.  Louis  vs.  Foster,  52  Mo.,  514. 
The  defendant  there  was  prosecuted  for  the  viola- 
tion of  a  city  ordinance  prohibiting  the  keeping  of 
gaming  tables.  On  the  trial  he  objected  to  the  in- 
troJuction  of  the  ordinances,  claiming  they  were 
invalid,  because,  among  other  reasons,  they  were 
not  read  and  published  before  adoption,  as  required 
by  law.  His  objections  were  overruled  and  the 
ordinances  admitted,  which  is  claimed  as  error. 

Said     the    Court  :        "  The     Charter  *  provides, 

that  every  ordinance  shall  be  read  on  three  difftrent  days 
of  the  stated  session,  at  which,  and  before  it  was  passed,  and 
the  objection  was  interposed  to  the  reading  of  the  ordinance, 
th.it  this  direction  was  not  pursued.  But  notwithstanding  this, 
the  Court  admitted  it.  The  laws  on  this  subject  was  elaborately 
con.-iidercd  in  the  case  of  the  Pacific  R.  R.  vs.  The  Governor, 
(23  Mo.,  353)  and  it  will  be  unnecessary  to  restate  what  was  so 
well  said  by  the  learned  Judge,  who  wrote  the  opinion  in  that 
case.  It  was  clearly  decided,  that  the  validity  of  a  statute, 
authenticated  in  the  manner  pointed  out  by  law,  could  not  be 
impeached  by  showing  a  departure  from  the  forms  prescribed  by 
the  Constitution,  in  the  passage  of  the  law.  The  same  principle 
applies  to  muiiicipal    corporations.     Their    Charters    are    their 


HI 

Constitution,  which  authorize  the  Councils  to  act,  and  a  City 
Council  is  a  miniature  General  Assembly,  and  their  authorized 
ordinances  have  the  force  of  laws  passed  by  the  Legislature  of 
the  State.  *  *  *  As  the  ordinance  had  all 

the  marks  of  being  valid,  and  appeared  to  be  regularly  passed 
and  was  published  by  authority,  we  are  satisfied  that  it  could 
not  be  rejected  as  evidence  on  the  alleged  ground  that  it  was 
incorrectly  passed  as  to  matters  of  form." 

Secondly.  The  assertion  that  the  "  supplement 
was  not  circulated  co-extensively  with  the  news- 
paper "  does  not  appear  to  be  borne  out  by  the 
evidence.  The  only  testimony  on  that  point  is, 
that  these  supplements  "  were  circulated  with  the 
paper,  distributed  in  the  same  way  and  at  the 
same  time  as  the  paper  itself,  and  g'o  to  every 
subscriber  who  takes  the  paper."  [Trans.,  fols. 
1035,  1039.] 

Thirdly.  The  publication  in  the  supplement 
was  perfectly  legal. 

"  A  publication  in  Exiras,''  says  Hurroughs, 
on  Taxation,  p.  291,  "circulated  with  the  paper 
designated  by  law   is  a  good  publication." 

Is  there  not  somethin<:  revolting/  to  common 
honesty,  in  the  idea  that  the  City  of  San  P'randsco 
can  avoid  the  payment  of  $1,000,000  ol  bonds, 
issued  in  payment  of  property  which  it  now  holds 
and  (Mijoys  as  a  [>ublic  str(;et,  because,  forsooih,  an 
ordinance  was,  for  one  cla\",  printed  in  a  sup- 
plement .'* 


142 

2.  The  notice  required  by  Section  6,  to  be  pub- 
lished by  the  Commissioners. 

The  Board  of  Dupont  Street  Commissioners 
"  claiming  to  act  under  the  Act  of  the  Legislature," 
met  on  the  3d  day  of  April,  1876.  [Finding  III, 
Trans.,  fols.  424-426.]  On  the,  loth  day  of  April, 
they  again  met,  and  adopted  a  resolution  that  the 
notice  "provided  for  by  Section  VI  of  the  Act  of 
the  Legislature  "  be  published,  designating  the 
papers  in  which  it  should  be  published.  [Finding 
III,  fols.  426,  527-530.]  The  Secretary  caused 
the  notice  to  be  published  as  directed.  [Finding 
VIII,  fols.  436-439.  534-] 

The  objection  to  this  publication  is,  that  it  was 
published,  at  times,  in  the  supplement  of  the 
papers,  and  that  the  Secretary  was  not  authorized 
to  cause  it  to  be  published,  and  that  the  Secretary 
selected  the  newspapers  to  publish  it  in,  and  the 
Board  had  no  authority  to  act  until  the  Supervis- 
ors had  adopted  a  resolution. 

(a.)  As  to  publication  in  supplements,  I  have 
already  noticed  that,  above. 

(b.)  As  to  the  Secretary  having  no  authority, 
that  is  an  error.  The  Board  expressly  authorized 
him.     [Fols.  531,  532.] 

(c.)  As  to  the  papers  being  designated  by  the 
Secretary,  that  is  equally  an  error.  The  Board 
designated  the  papers.     [Fol.  527.] 

(d.)     The  Board  did   not  derive  their  authority 


143 

from  the  Board  of  Supervisors,  but  from  the  Act. 
[Sec,  4.]  They  might  not,  it  is  true,  give  the 
notice  under  Section  6,  until  after  the  Supervisors 
had  adopted  a  resolution  ;  but,  surely,  they  might 
in  anticipation  of  that  resolution,  resolve  that,  as  soon 
as  it  was  adopted,  the  proper  notice,  under  Section 
6,  should  be  given.  And  that  is  what  they  did 
do.     [Fol.  531.] 

There  is  no  question  that  the  notice  was  pub- 
lished after  the  resolution  of  the  Board  of  Super- 
visors was  adopted,  the  first  publication  being  on 
May  4th,  1876.  [Fol.  437.]  These  notices  appear 
regularly  in  the  minute  book  of  the  Board  of  Com- 
missioners.    [Tran.  fols.  1073,  1076.] 

After  all  this,  (even  if  the  facts  warranted  the 
objection,  which,  as  I  have  shown,  they  do  not),  it 
is  too  late,  I  submit,  to  urge  that  iIk-  I>()ard  of 
Commissioners  did  not  authorize  the  action  of 
their  Secretary  in  making  the  publication,  or  the 
selection  of  the  papers  in  which  the  publication 
was  made. 

3.  The  Board  of  Commissioners  did,  ixftcr  hav- 
ing C07nplcted  their  report,  duly  give  and  eanse  to 
be  published  the  notice  that  the  same  was  in  their 
office,  open  for  inspection,  as  ret/nired  by  Section  7 
of  the  /let. 

The  only  objection  made  to  this  notice  is.  that 
it  was   published,    at    times,    in    supplements,   and 


144 

was  Insufficient,  because  "the  time  of  publication 
was  taken  out  of  the  thirty  days  that  the  report 
was  to  be  on  file." 

(a.)     As  to  supplements,   that    has    been   suffi- 
ciently noticed. 

(d.)  As  to  the  other  objection.  The  report 
is,  after  completion,  to  be  left  in  the  office  of  the 
Commissioners  "for  thirty  days"  [Sec.  7.]  Ob- 
jections to  the  report  must  be  made  "at  any  time 
within  the  thirty  days  mentioned  in  Section  7." 
[Sec.  8.]  Incase  no  objection  is  made  "  within 
the  time  above  limited,"  the  Board  must  present 
the  report  to  the  Court.  [Sec.  8.]  Obviously, 
therefore,  the  twenty  days  publication  must  be 
taken  out  of  the  thirty  days.  It  is  intimated  that 
this  renders  the  notice  invalid  in  point  of  law  ; 
but  no  reason  is  suggested  to  support  this  view, 
and  none  can  be  imagined. 

4.  The  judgment  of  the  County  Court,  conjirin- 
iiig  the  report,  zuas  regularly  entered. 

The  judgment  is  perfectly  regular  upon  its 
£ace  ;  and,  indeed,  is  avowed  to  be  so  in  the  com- 
plaint here.  [Trans.,  fols.  50,  51.]  It  need  not, 
therefore,  be  further  noticed. 

I  submit,  therefore,  that  all  the  proceedings  of 
the  Supervisors,  Commissioners  and  County 
Court,  required  to  be  taken  and  had  under  this 
Act,  have  been  regularly  had  and  taken. 


145 

As  to  secret  vices  in  the  proceedings,  such  as 
erroneous  systems  of  valuation,  interest  of  the 
Commissioners,  "  indecent  haste"  in  procuring 
confirmation,  and  the  Hke,  they  will  be  noticed 
when  I  come  to  examine  the  effect  of  the  judg- 
ment of  the  County  Court. 

III. 

The  Judgment  of  the  County  Court  is  a  Con- 
clusive Adjudication  in  all  Collateral  Ac- 
tions, THAT  (l)  THE  StEPS  REQUIRED  TO  BE  TaK- 

en  by  THE  Supervisors  and  Commissioners,  to 
GIVE  Validity  to  their  Proceedings,  have  been 
DULY  Taken  According  to  Law,  and  (2)  that 
the  Act,  Itself,  is  Constitutional. 
Before  proceeding  to  discuss  these  propositions, 
let  me  advert  to  a  claim   which  is  constantly  urj^ctl 
by  the  learned  counsel  for  plaintiffs,  as  to  the  char- 
acter in   which   the    County    Court    acted   in  these 
proceedings.      They    maintain     that     the    County 
Court  was,  in  this   matter,  a  Court    of  special  and 
limited  jurisdiction  ;     that,    it    possessed   no  otiier 
powers  than  such  as  were  expressly  conferred  uj)on 
it  i)y  the  Statiile  ;   and  thai,  ilK-reforc,  its  jiidL^nicnt 
is  of  no  hiL^her  valiu,-  than  would  \u-  that  <»l  a  mere 
Board  created  by    th(j    .Slaiuif    .uid    auihori/ed  to 
act  upon  the  subject. 

1  admit  that  the  rule  is  that,  where  a  Court,  how- 
ever general  its  ordinary  jurisdiction,  is  4)'  s/u////^ 


146 

alone  invested  with  a  jurisdiction  which  it  did  not 
have  as  a  Court  before  the  passage  of  the  Statute, 
it  may  be  said  that,  actin^^  wholly  under  the  Statute, 
it  is  quoad  Jioc  a  Court  of  inferior  or  limited  juris- 
diction. As  said  the  Court  of  Appeals  of  New 
York  in  Embury  vs.  Connoi',  3  N.  Y.,  523,  "as  its 
powers  in  such  matters  are  wholly  derived  from  the 
statutes  and  do  not  belong-  to  it,  as  a  Court  of 
general  jurisdiction,  its  decisions  must  be  treated 
like  those  of  a  Court  of  special  and  limited  juris- 
diction," 

It  will  be  noticed,  in  all  the  cases  upon  the  sub- 
ject, that  it  is  of  the  very  essence  and,  indeed,  is 
the  very  foundation  of  the  rule  that  the  powers  of 
the  Court  to  take  jurisdiction  of  subject  matter 
shall  be  derived  wholly  from  the  stat?cte. 

That  rule  does  not  apply  here.  The  County 
Court  does  not  derive  its  authority  to  act  in  mat- 
ters of  this  character  from  the  statute,  but  from 
the  constitution  of  the  State  [Const.  Sec.  9,  Art. 
VI].  "  The  Constitution  itself  has  distinctly 
provided  that  the  jurisdiction  in  special  cases  shall 
be  in  the  County  Court,"  and  "  proceedings  for  the 
opening,  grading,  extension,  paving  and  alteration 
of  streets,  and  the  assessment  of  damages  thereby, 
have  been  treated  by  the  Legislature  and  the 
Courts  as  special  proceedings."  [Houghton's  Ap- 
peal, 42  Cal,  62,  56.]  The  Constitution  makes 
that   Court   a   Court   of  record.      [Const.,    Sec.  8> 


147 

Art.  VI.]  "The  proceedings  of  this  Court  are 
construed  in  the  same  manner  and  with  Hke  in- 
tendments, as  the  proceedings  of  Courts  of  gen- 
eral jurisdiction  and  to  its  records,  orders  and 
decrees,  there  is  accorded  the  like  force,  effect  and 
legal  presumptions."     [C.  C.  P.  587.] 

When  the  Constitution  started  out  by  declaring 
that  the  County  Court  was  a  Court  of  record,  and 
then,  in  the  very  next  section,  gave  it  jurisdic- 
tion over  special  proceedings,  did  the  Constitution 
mean  that,  when  the  Court  exercised,  in  a  special 
proceeding,  the  very  jurisdiction  expressly  con- 
ferred upon  it  by  the  Constitution,  it  should  not  exer- 
cise it  as  a  Court  of  record?  Did  the  Constitiiiion 
mean  that  the  County  Court  should  be  a  Court 
of  record  in  all  matters  except  special  proceedings  ? 
What  warrant  is  found  in  the  language  of  the 
Constitution  for  ascribing  any  such  contradictory 
mc^aning  to  that  instrument  ?  Inirther  :  When 
the  Code  says  that  the  proceedings  of  the  County 
Court  are  to  be  construed  in  th(;  same  manner. 
and  with  like  intf.-ndments.  force,  eflect  and  legal 
presumptions  as  the  proceedings  ol  Courts  of 
general  jurisdiction,  what  proct.-edings  ol  the 
County  Court  is  the  Code  spi-aking  of?  Is  it  not 
speaking  of  all  proceedings  which  the  Court  has 
jurisdiction  of  unl<-r  the  Constitution  of  tlv-  State  ? 
Does  the  Code  say  that  that  ronslruclion  sh.ill  be 
given    to   some   of  the  prf)ceediiigs  of  the  County 


148 

Court,  but  denied  toothers  ?  No.  The  language 
is  general  and  without  exception  or  restriction. 
What  ground  is  there,  then,  for  saying  that  the 
proceedings  of  the  County  Court  shall  be  treated 
as  the  judgment  of  a  Court  of  general  jurisdic- 
tion, except  when  it  is  exercising  in  "  special  cases  " 
a  jurisdiction  directly  conferred  upon  it  by  the 
Constitution  ? 

It  is  too  clear  for  argument,  I  submit,  that  the 
County  Court  is  created  by  the  Constitution  a  Court 
of  record,  for  the  purpose  of  discharging  all  the 
functions  imposed  upon  it  by  the  Constitution — 
including  "special  cases"  as  well  as  others.  It  is 
no  less  clear  that  the  proceedings  of  this  Court 
taken  in  "  special  cases"  are,  under  Sec.  Sy  of  the 
Code,  to  be  treated  "as  the  proceedings  of  Courts 
of  general  jurisdiction." 

The  contention,  therefore,  of  the  learned  counsel 
opposite,  that  the  order  of  the  County  Court,  in  this 
case,  approving  and  confirming  the  report  of  the 
Dupont  Street  Commissioners  is  to  be  treated  as  the 
order  of  a  Court  of  inferior  jurisdiction,  and  to  be 
deprived  of  the  aid  of  the  beneficent  "intendments, 
effects  and  legal  presumptions  "  which  wait  upon 
the  judgments  of  "Courts  of  general  jurisdic- 
tion," is  based  upon  a  misconception  of  the  source 
of  the  jurisdiction  of  the  Court,  and  is  absolutely 
untenable  under  our  constitution  and  laws. 


149 

L     The   tudgmext  of  the  County  Court  is 

A    CONCLUSIVE    ADJUDICATION     IN    ALL    COLLATERAL 
ACTIONS     THAT    THE    STEPS   REQUIRED    TO  BE   TAKEN 

BY  THE  Supervisors  and  Com:^iissioners  to  give 

VALIDITY    TO    THEIR  PROCEEDINGS  HAVE  BEEN   DULY 
taken  ACCORDING  TO  LAW. 

{a.)  The  judgment  of  the  County  Court  givino- 
its  approval  and  confirmation  to  the  report,  was  a 
judgment  by  which,  if  valid,  an  assessment  was 
legally  established,  by  which  a  charge  upon  prop- 
erty-owners was  legally  created,  by  which  the 
property  of  citizens  was  taken  for  a  public  use. 
That  Court,  we  all  admit,  had  no  authority  to  make 
this  assessment,  to  impose  this  charge,  to  take  this 
property,  unless  it  had  jurisdiction  of  the  persons 
to  be  affected  by  its  judgment  —  the  owners  of  the 
land.  Jurisdiction  of  these  persons  depended  up- 
on the  fact  of  their  having  been  summoned  into 
Court  by  some  process  known  to  the  law  and  ap- 
propriate to  the  case.  The  process,  in  thepres(Mit 
case,  was  the  published  notice  under  Section  7. 
The  jurisdiction  of  the  Court  over  the  persons  af- 
fected depended  upon  the  fact  that  this  notice  had 
been  given  as  rerj  iire<I  by  tlie  sialuie. 

Now,  when  the  Pxj.ird  fm.illy  preseiUe<l  iheir  r<' 
port,    and    asked    for   the  judgment  of  llie   Court 
confirming  it,  the  Court  had  the  right  to  pronounce 
judgment  against  the  partir-s  to  be  affected    by   its 
judgment,  if  it  harl  arrjuired  jurisdiction  over  them 


^50 

— I'f  the  process  provided  by  law  had  been  served 
upon  them.  If  the  Court  had  not  acquired  juris- 
diction over  them — if  the  process  had  not  been 
served  upon  them — it  had  no  right  to  pronounce 
judgment  against  them.  Surely,  it  will  not  be 
contended  that,  upon  this  vital  point,  the  Court  is 
ordered  by  the  statute  to  act  blindly.  The  peti- 
tion of  the  Board,  together  with  its  report,  is  but 
a  prayer  addressed  to  the  Court  to  pronounce 
judgment  against  the  land-holders  by  default.  It 
is  a  representation  that  the  parties  in  interest,  hav- 
ing been  duly  summoned  to  appear,  by  their 
silence  consent  to  the  proceeding  taken  and  to  be 
taken  against  them.  The  Court  must,  then,  in 
some  way,  know  that  they  are  in  default;  that,  having 
had  notice  and  opportunity  to  contest  the  proceed- 
ings directed  against  them,  they  are  satisfied,  and 
do  not  choose  to  contest  them. 

It  seems  to  me  perfectly  clear  that  the  very  first 
inquiry  of  the  Court,  when  called  upon  to  pro- 
nounce this  judgment,  must,  of  necessity,  be, 
whether  the  notice  required  by  Section  7,  has  been 
given,  or  not.  In  other  words,  the  Court  must,  at 
the  threshold,  inquire  into  its  jurisdiction  over  the 
persons — its  right  to  act  at  all. 

In  this  case,  the  Court  made  the  inquiry,  and 
determined  and  adjudged  that  the  fact  existed — 
that  the  process  had  been  duly  served  upon  all  per- 
sons in  interest.      Its  judgment  (fols,  976,  977.)  so.. 


151 

states,  and  there  is  nothing  in  the  record  to  con- 
tradict it.  Can  that  determination  be  attacked  col- 
laterally by  evidence  outside  the  record  ?  I  under- 
stand it  to  be  the  settled  doctrine  in  this  State,  that 
the  judgment  of  a  Court  of  record  imports  abso- 
lute v^erity  upon  all  thinofs  on  which  it  is  authorized 
to  speak;  and  that,  if  the  judgment  adjudges  the  fact 
that  all  parties  against  whom  the  judgment  is  pro- 
nounced, have  been  duly  served  with  process,  and 
have  made  default,  that  adjudication,  there  being 
nothing  in  the  record  to  contradict  it,  is  final  in  all 
collateral  actions.  ^ 

Were  it  even  true,  therefore,  that  the  notice  pro- 
vided by  Section  seven  was  not  properly  published, 
because  published,  at  times,  in  a  supplement,  (and 
this  is  the  only  fault  found  witli  the  publication), 
that  fact  could  not  avail  th(;  plaintiffs,  for  ihe 
Court  has  found  that  it  was  "duly  published  in  two 
daily  newspapers,"  (Trans.,  fol.  977).  and  that 
finding  cannot  be  impeached  by  shi)wing  by  evi- 
dence aliunde  that  it  was,  at  times,  published  in  a 
supplement.  ^ 

{b.)  I>ut  the  investigation  of  the  County  Court 
was  not  to  stop  with  an  intiuiry  into  the  mere  s(T- 
vice  of  process  upon  the  parties  in  interest.  Hy 
its  action  it  was  to  establish,  in  the  form  of  a  sol- 
emn judgment,  things    of  llie    highest    im[)<)rlancc 

1.  Ilahn  vs.  Kelly,  34e':>l.,  391. 

2.  M.   il)i<l. 


152 

and  of  far  reaching  consequences.  Upon  its  judg- 
ment, as  a  judicial  determination,  it  would  result 
that  property  estimated  to  be  worth  nearly  one 
million  of  dollars  was  to  be  taken  from  private  citi- 
zens and  transferred  to  the  City  of  San  Francisco, 
to  be  dedicated  to  a  public  use  ;  that  rows  of  build- 
ings upon  the  whole  side  of  a  main  street  in  the 
City  were  to  be  torn  down  ;  that  bonds  in  the  sum 
of  one  million  of  dollars  would  be  sold  and  floated 
upon  the  world  by  the  City  authorities  ;  that  a 
charge  of  twenty  years  would  be  laid  upon  the 
property  of  a  whole  district. 

These  were  the  consequences  of  the  judgment 
of  the  County  Court,  foreseen  and  provided  for 
by  the  Legislature.  This  judgment  we  are  told, 
was  a  valid  judgment,  if  the  Board  of  Supervis- 
ors had,  after  due  publication,  adopted  the  ordi- 
nance provided  for  in  Section  2  i  of  the  Act;  but,  if 
the  board  had  not  so  adopted  the  ordinance,  then 
the  judgment  was  a  nullity.  We  are  further  told 
that,  even  though  it  might  appear  regularly  upon 
the  records  of  the  Board  of  Supervisors  to  have 
been  adopted  by  the  board,  and  to  have  received 
the  approval  of  the  Mayor,  yet  the  ordinance 
would  be  void,  if  it  could  be  shown  that,  on  one 
of  the  five  days  of  its  publication,  it  was  printed 
in  the  supplement  of  the  newspaper,  or  that  the 
supplement  was  not  circulated  co-ektensively  with 


^^3 

the  newspaper.  We  are  told,  further,  that,  when- 
ever this  is  shown,  it  estabhshes,  as  a  matter  of 
law,  that  the  judgment  of  the  County  Court  was 
a  nullity,  and  all  proceedings  under  it  are  void. 

Follow  out  the  consequences  of  this  doctrine  : 
The  Board  of  Supervisors  have  adopted  the  reso- 
lution under  Section  21,  but,  on  one  day,  it  was 
published  in  the  supplement  of  the  Examiner,  in- 
stead of  the  Examiner  itself ;  and,  therefore,  ac- 
cording to  plaintiff's  contention,  it  is  a  nullity. 
The  Board  of  Commissioners  meet  and  make 
surveys,  diagrams,  reports ;  they  employ  a  secre- 
tary, attorneys,  clerks,  draughtsmen,  searchers  of 
records  and  other  assistants  ;  they  make  a  report 
to  the  County  Court  ;  the  Court  by  solemn  judg- 
ment, confirms  it ;  bonds  to  the  extent  of  one 
million  are  sold  by  the  City,  and  are  readily  bought 
by  all  classes  of  people ;  the  Commissioners, 
thereupon,  t(;ar  down  the  buildings  upon  the  whole 
length  of  the  west  side  of  the  street ;  when  they 
reach  the  last  building,  the  owner  thereof  discovers 
that  the  publication  of  the  ordinance  was  made, 
for  one  day,  in  the  supi^lcmcni  ol  ilic  I'.xaniincr  ; 
thereupon,  lie  procures,  upon  the  ground  ih.ii  llic 
whole  proceeding  is  a  nnnil\,  an  injinKlion  upon 
the  board  to  refrain  from  laying  hands  on  his.prop- 
erty  ;  this  injunction  is  served,  a  trial  had.  and  the 
Court,  upon  the  ground  that  the  ordinance,  which 
was    the   basis  of   all   the  proceedings,  had  never 


154 

been  legally  published,  declares  the  proceedings  a 
nullity,  and  makes  the  injunction  perpetual. 

The  picture  I  hav^e  sketched  is  neither  fanciful 
nor  overdrawn.  It  is  naturally  suggested  by  the 
theory  of  the  plaintiffs  here.  Can  it  be  that  the 
Legislature,  in  framing  this  Act,  contemplated 
that  such  a  condition  of  affairs  should  ever  be 
possible  ?  Can  it  be  that  they  contemplated  that 
these  proceedings  should  go  on  to  the  point  of 
issuing  bonds  and  tearing"  down  buildings,  without 
having  made  sure  and  placed  beyond  the  reach  of 
controversy  the  fact  that  the  proceedings  were  in 
accordance  with  law  ?  If  the  ordinance  is,  indeed, 
the  foundation  of  all  the  rest,  can  it  be  that  the 
Legislature  intended  thatthelegal  sufficiency  of  that 
foundation  should  not  be  conclusively  established, 
before  the  superstructure  was  finally  erected  ? 
Would  such  a  construction  as  this  be  a  reasonable 
construction  of  the  Act  ?  If  such  a  construction 
can  be  avoided,  will  not  the  Court  readily  embrace 
the  opportunity  ? 

I  contend,  that  if  the  power  of  the  County 
Court  to  pronounce  a  valid  judgment,  or  to  make 
a  valid  confirmation  of  a  report,  depended  upon 
the  fact  that  a  certain  ordinance  had  been  passed, 
then  the  Court  had,  at  the  outset,  jurisdiction  to 
inquire  and  determine  whether  such  ordinance 
existed  ;  and,  if  the  validity  of  the  ordinance  de- 
pended upon  its  publication,  to  inquire  into  the  pub- 


DO 


Hcation  And,  I  contend,  further,  that  when,  after 
such  inquiry,  the  Court  determined  judicially  that 
the  ordinance  did  exist  and  was  valid,  as  it  did  here, 
(fol.  966)  it  set  that  question  forever  at  rest  in  that 
proceeding. 

The  ordinance  was  a  fact,  without  the  existence 
of  which  the  Court  could  never  be  brouL''ht  in  leo-al 
relation  with  the  proceedings.  The  Court,  actino- 
as  the  minister  of  the  law,  in  pronouncing  jud""-- 
ment,  necessarilv  determined  that  it  had  the  ri(dit 
so  to  pronounce  it.  If  the  legal  right  to  pronounce 
the  judgment,  depended  upon  the  existence  of  any 
extrinsic  fact — an  ordinance,  or  the  like — the  very 
rendition  of  the  judgment  is  a  conclusive  adjudica- 
tion that  the  fact  existed.  As  this  Court  said  of 
similar  proceedings,  in  People  vs.  Hagar,  52  Cal., 
183,  "these  were  jurisdictional  facts,  which  the  Hoard 
necessarily  determined  in  ai^proving  \.\\v.  p(;tiiion, 
and  its  action  is  not  open  to  attack  in  a  collateral 
action.  Whenever  the  jurisdiction  of  a  Court  not 
of  record  {and.  a  fortiori,  of  a  Court  of  record)  de- 
pends on  a  fact  which  the  Court  is  HMjuired  to  as- 
certain and  settle  by  its  decision,  such  decision, 
if  the  Court  has  jurisdiction  o{  the  parties,  is  con- 
clusive, and  not  subject  to  .uiy  collateral  attack. 
FretMiian  on  Judgments,  .Sec.  523.  Bigelow  on 
Estoppel,  p.   142." 

It  is  said   that   the    statute    docs    not    expressly 
authorize  th(^   County   Court    to    institut('   this   in- 


156 

quirv  iind  that,  therefore,  it  had  no  right  to  insti- 
tute it  or  pass  upon  the  question.  There  was  no 
necessity  for  any  express  grant  of  authority  on  this 
subject  by  the  statute.  In  conferring  upon  the 
Court  the  power  to  pronounce  judgment,  the  Legis- 
lature necessarily  contemplated  that  this  judgment 
should  be  valid  and  legal.  If,  to  render  the  judg- 
ment valid,  it  was  essential  that  certain  facts  should 
exist,  then  the  Legislature  necessarily  contem- 
plated that  the  Court  should  examine  and  decide 
upon  their  existence. 

To  illustrate  what  I  have  said  :  Assume  that  the 
Board  and  a  dissatisfied  property-owner  appear 
before  the  Court,  to  litigate  the  question  of  the 
confirmation  of  the  report — suppose  that  the  con- 
testant alleges  that,  in  point  of  fact,  no  resolution 
or  order  has  ever  been  adopted  by  the  Board  of  Su- 
pervisors ;  must  the  Court  decline  to  hear  him  ? 
Suppose  the  Court  hears  him,  and  the  proof  es- 
tablishes his  alleofation  ;  must  the  Court  q-q  on 
and  confirm  the  report  ?  Would  the  learned 
counsel  opposite  contend  that  the  County  Court 
mii^ht  make  a  findinof  to  the  effect  that  no  resolu- 
tion  or  order,  as  provided  by  Section  2 1  of  the 
Act,  was  ever  adopted  by  the  Board  of  Super- 
visors, but  that,  as  the  Court  has  nauQ^ht  to  do  with 
that  question,  and  as  the  report  is,  in  other  res- 
pects, quite  in  accordance  with  the  provisions  of 
the  statute,  therefore  it   should   be   confirmed   and 


157 

the  Board  should  proceed  to  widen  the  street  ? 
Would  they  contend  that  a  judgment  based  upon 
such  a  finding  would  not  be  erroneous  upon  its 
face  ?  Would  they  contend  that,  if  appeal  was 
taken,  upon  that  finding  alone,  to  the  Supreme 
Court,  that  that  Court  should  not  reverse,  but  must 
affirm  the  judgment? 

I  do  not  conceive  that  such  a  proposition  can, 
for  a  moment,  be  maintained.  The  contestant 
may,  under  section  eight,  file  a  petition  "  setting 
forth  his  interest  in  the  proceedings  had  before  the 
Board,  and  his  objections  thereto."  The  Board 
answer.  A  dav  is  then  set  for  hearin^f.  "  Testi- 
mony  may  be  taken  by  said  Court  upon  said 
hearing,  and  the  process  of  the  Court  may  be 
used  to  compel  the  attendance  of  witnesses,  and 
the  production  of  books  or  papers  or  maps  in  the 
custody  cf  said  Board  or  otherwise."  Why,  untlcr 
these  provisions,  may  not  a  contestant  object  that 
no  order  or  resolution  has  ever  been  adopted  by 
the  Board  of  Supervisors  ? 

The  County  Court,  say  the  learned  c(junsel,  has 
no  authority  to  determine  that  there  ever  was  any 
such  ord(-r  or  resolution.  Nor,  consequenlK  .  would 
the  Sujjrcme  Court  ha\'e,  in  case  ol  an  a])pcal. 
These  Courts  have,  it  is  asserted,  absolutely  noth- 
ing to  do  with  the  matter.  Th'V  must  leave  the 
question  where  they  find  it  to  remain  open  during 
the  twenty  years  that  the  bonds  have  f.)  run,  to  be 


I5S 

agitated  as  against  each  and  every  bondholder  de- 
manding payment  of  interest  or  principal.  It  is 
inconceivable  that  this  is  the  meaning  of  the  statute. 
To  so  hold,  is  to  credit  the  Legislature  with  the 
authorship  of  a  scheme  of  unparalleled  folly. 

The  Board  of  Commissioners,  it    is    said,    have 
no  power  to  organize — do  not  become  an  organic 
body — unless  a  proper  order  or  resolution  has  been 
adopted.      If   none    is   so  adopted,    they  have    no 
right,  it  is  affirmed,  to    do   anything.      The  report 
of  the  Board  is,  if   there  had   been  a  proper  order 
or  resolution,  the  official  act  of  a  legally  constituted 
body.      If,  on  the  other  hand,    there  has   been  no 
such   order,  the   report  is  a  nullity,  and   the   three 
persons  named  are  officious  intermeddlers.      Now, 
when  these  three  persons  present    to    the  Court  a 
report,   purporting    to    be  a  report   of   a  Board  of 
Commissioners,    may  not    the  Court    inquire  who 
and  what    they  are  ?     They    call    themselves    the 
Board  of  Commissioners ;  but  is  the  Court  bound 
to  take  their  word  for  it  ?     They  are  such  a  board, 
if  a  proper  order  or  resolution  has  been  adopted  ; 
if  not,  they  are  not.      May  not  the  Court,  then,  as- 
certain   whether  such   an    order  or  resolution  has 
been  adopted  ?     If  not,  how  does  the  Court  know 
that  it  is  dealing  with  an  authorized  public  body  ? 

The  Court  is  called  upon  to  confirm  a  document 
before  it,  which  is  styled  a  report  of  the  Board  of 
Commissioners.     Such  a  report,   it  is  asserted,  is. 


159 

unauthorized  by  law — is  a  nullity — unless  preceded 
by  a  proper  order  or  resolution  of  the  Board  of 
Supervisors.  May  not  the  Court,  then,  ascertain 
whether  the  report  is  a  thing  that  has  a  legal  ex- 
istence ?  It  the  only  way  of  ascertaining  is  to 
examine  the  sufificiency  of  the  order  or  resolution, 
will  not  the  Court  make  the  examination  ?  Must 
the  Court  blindly  accept  what  is  presented  to  it, 
without  inquiring  inco  its  legal  quality  ? 

I  submit,  that  the  final  judgmenc  of  the  County 
Court,  confirming  the  report,  is  necessarily  an  ad- 
judication that  the  report  is  authorized  bv  law; 
that  if.  in  order  to  its  being  authorized  by  law,  it 
must  be  preceded  by  a  given  order  or  resolution, 
then,  the  judgment  is  an  adjudication  thai  such 
order  or  resolution  existed.  I  submit,  further, 
that  the  final  judgment  is  necessarily  an  adjudi- 
cation that  the  report  is  the  report  of  a  body  au- 
thorized by  law  ;  that,  if  to  the  legal  existence  of 
such  a  body,  a  given  order  or  resohition  is  neces- 
sary, the  judgment  is  an  adjudic.iiion  ol  the  ck- 
istence  of  such  an  ortler  or  resolution. 

The  above  contentions  are  W(dl  illustrated  by 
the  case  oi"  Gaoe  vs.  Parker,  103  111..  52S,  535. 

It  was  an  application  to  set  aside  a  sale  of  cer- 
tain lands  for  th(;  payment  of  a  d(din(iu<'nl  sewer- 
erage  asscssme-nt,  imposed  thereon,  by  the  lovvn 
of  Hyde  Park,  in  cf)nformity  with  the  provisions 
of  the  Illinois  Cen(;ral    Act    in    rel.uion  lo    cities, 


i6o 

villages  and  towns.  (111.  Rev.  Stat.,  1883,  Ch.  24, 
Art. 9,  )  and  an  ordinance  of  said  town,  adopted 
in  pursuance  thereof. 

The  statute  under  which  the  assessment  was 
levied,  provided  as  follows  : 

Sec.  I. — "The  corporate  authorities  of  cities  and  villages  are 
hereby  vested  with  power  to  make  local  improvements  by  special 
assessment,  or  by  special  taxation  or  both,  of  contiguous  property, 
or  by  general  taxation  or  otherwise  as  they  shall  by  ordinance 
prescribe." 

Sec.  2. — "  IV/iefi  any  such  city  or  village  shall  by  ordinance 
provide  for  the  maki?ig  of  any  local  improvement,  it  shall  by  the 
same  ordinance  prescribe  whether  the  same  shall  be  made  by 
special  assessment  or  by  special  taxation  of  contiguous  property,  or 
hy  general  taxation,  or  both^ 

Sec.  19. — "  Whenever  such  local  improvements  are  to  be  made 
wholly  or  in  part  by  special  assessnietits,  the  Common  Council  in 
cities  *  shall  pass  an  ordinance  to  that  effect,  specifying  therein 
the  nature,  character,  locality  and  description  of  such  improve- 
ment. "     *     * 

.  Sec.  20. — "The  City  Council  or  board  of  trustees  *  * 
shall  ajipoint  three  of  its  members  or  any  three  other  competent 
persons,  who  shall  make  an  estimate  of  the  cost  of  the  improve- 
ment contemplated  by  such  ordinance,  including  labor,  materials 
and  all  other  expenses  attending  the  same,  and  the  cost  of  mak- 
ing and  laying  the  assessment,  and  shall  report  the  same  in  writ- 
ing to  said  council  or  board  of  trustees." 

Sec.  21. — "On  such  report  being  made,  and  approved  by  the 
Council  or  board  of  trustees,  *  *  *  it  may  order  a  petition 
to  be  filed  by  such  officer  as  it  shall  direct,  in  the  County  Court  of 
the  County,  for  proceedings  to  assess  the  cost  of  such  improvement, 
in  the  manner  provided  in  this  Act" 

Sec.  22. — "The  petition  shall  be  in  the  name  of  the  corpor- 
ation and  shall  recite  the  ordinance  for  the  proposed  improve- 
ment and  the  report  of  such  commission,  and  shall  pray  that  the 
cost  of  such  improvement  may  be  assessed  in  the  manner  pre- 
scribed by  law." 


i6i 

Sec  23. — "  Upon  the  filing  of  such  petition,  the  Court  shall 
appoint  three  competent  persons  as  Commissioners  who  shall 
take  and  subscribe  an  oath"  (giving  its  substance.) 

Sec.  24. — The  Commissioners  shall  examine  the  locality  where 
the  improvement  is  proposed  to  be  made,  and  the  lots,  (S:c.,  that 
will  be  specially  benefited  thereby,  and  estimate  the  proportion 
of  said  improvement  that  will  benefit  the  jjublic,  and  that  will  be 
beneficial  to  special  property,  and  apportion  the  same  between  the 
city  *  and  such  property,  and  assess  the  special  benefits  to 
the  lots  and  tracts  specially  benefited.  Provided,  no  lot  cVx.,  shall 
be  assessed  more  than  it  is  actually  benefited. 

Sec.  26. — "  They  shall  also  make  or  cause  to  be  wade  an  assess- 
ment roll,  in  which  shall  appear  the  names  of  all  the  owners  as 
far  as  known,  a  description  of  each  lot,  &:c.,  and  the  amount  as- 
sessed as  special  benefits  thereto,  and  in  which  they  shall  set 
down  as  against  the  city  *  the  amount  they  shall  have  found 
of  public  benefit,  and  certify  snch  assessment  roil  to  the  Court  hy 
which  they  were  appointed  at  least  ten  days  before  the  first  day  of 
the  term  at  which  a  final  hearing  thereon  will  be  had.'' 

Sec.  27. — "  It  shall  be  the  duty  of  Commissioners  to  give  notice 
■of  such  assessment  and  of  the  term  of  Court  at  which  a  final 
hearing  thereon  will  be  had,  in  the  following  manner." 

1.  They  shall  mail  notice  to  each  known  owner,  .stating  tliat 
':his  property,  describing  it,  is  assessed  at  such  and  such  a  sum, 

and  the  .assessment  will  be  returned  to  su(h  and  such  a  term  of 
the  County  Court. 

2.  They  shall  give  notice  by  posting  for  ten  days  in  at  least  four 
jjublic  places  of  the  city  or  village,  two  in  the  neighborhood  of 
the  improvement,  and  by  publishing  for  five  successive  days  in  a 
daily  newspaper  of  the  city  or  village,  if  any,  or  if  there  is  no 
daily,  then  once  a  week  for  two  weeks  in  a  weekly  paper,  or  if  no 
weekly  or  daily  paper  is  |>u!)lished  in  the  village  or  city,  then  in 
a  newspaper  of  the  county  -which  notic  e  may  l)e  subslantially 
as  follows  : 

"Notice  is  hereby  given  to  all  parties  interested,  that  the  City 

Council  of ,  having  ordered  that  (here  insert  dcM  rii)ti(m 

of  improvement  as  in  ordinance,)  have   applied   to  the  County 

Court  of County,  for  an  assessment  of  the  cost  of  said 

improvement  according  to  benefits,  and   an   assessment  thereof 


l62 

having  been  made  and  returned  to  said  Court,  the  final  hearing 

thereon  will  be  had  at  the term  of  said  Court,  commencing 

on ^ .  All  persons  desiring  may  then  and  there  appear 

and  make  defense." 

Sec.  28. — The  Commissioners  shall,  before  final  hearing  es- 
tablish the  mailing  and  publication  by  affidavit. 

Sec.  39. — Any  person  interested  in  real  estate  to  be  affected  by 
such  assessment,  may  appear  and  file  objections  to  such  report,  and 
the  Court  may  make  such  order  in  regard  to  the  time  of  filing 
such  objections  as  may  be  made  in  cases  at  law  in  regard  to  the 
time  of  fili.ig  pleas.  As  to  all  lots,  blocks,  tracts  and  parcels  of 
land  to  the  assessment  of  which  objections  are  not  filed  within 
the  time  ordered  by  the  Court,  default  may  be  entered,  and  the 
assessment  confirmed  by  the  Court. 

Sec.  31.  On  the  hearing,  the  report  of  the  Commissioners  sKall 
be  competent  evidence,  and  either  party  may  introduce  such  other  evi- 
dence as  may  tend  to  establish  the  right  of  the  matter.  The  hear- 
ing shall  be  conducted  as  other  cases  at  law,  and  if  it  shall  appear 
that  the  premises  of  the  objector  are  assessed  more  or  less  than  they 
will  be  benefited,  or  more  or  less  than  their  proportionate  share  of 
the  cost  of  the  improvement,  the  Jury  shall  so  find,  and  also  find 
the  amount  for  which  such  premises  ojight  to  be  assessed,  and  Judg- 
ment shall  be  rendered  accordingly. 

Sec.  33.  The  Court  before  which  any  such  proceeding  may 
be  pending  shall  have  power  at  any  time  before  final  adjotirn- 
ment  [Judgment )  to  modify,  alter,  change,  annul  or  confirm  any 
assessment  returned  as  aforesaid,  or  cause  any  such  assessment  to 
be  recast  by  the  same  Comtnissioners  whenever  necessary  for  the  at- 
tainment of  Justice,  *  or  may  appoint  other  Commission- 
ers in  the  place  of  all  or  any  of  the  Commissioners  first  appointed, 
for  the  pmpose  of  making  such  assessment,  or  modifying,  altering, 
changing  or  recasting  the  same,  and  may  take  all  such  proceedings^ 
and  make  all  such  orders  as  may  be  fiecessary  to  make  a  true  and 
Just  assesment  of  the  cost  of  the  improvement  according  to  the  prin- 
ciples of  this  act,  ^'C. 

Sec.  34.  Provides  that  the  judgment  shall  have  the  effect  of  a 
several  judgment,  as  to  each  tract,  and  any  appeal  ox  writ  of  error 
shall  not  stay  the  judgment  unless  as  to  property  concerning 


1 63 

which  the  appeal  is  taken.     The  judgment  shall  be  a  lien  from 
its  date. 

The  ground  upon  which  the  assessment  and 
the  sale  thereunder  w-ere  attacked  was  that  the  or^ 
dinance  which  initiated  the  proceedings  was  not  in 
conformity  with  the  statue,  and,  consequently,  that 
the  whole  proceeding  was  illegal  and  void.  The 
question  for  decision  was  whether  such  an  objec- 
tion could  be  made  after  the  County  Court  had 
confirmed  the  assessment. 
The  Court  said,  [p.   535]: 

"  The  19th  Section  of  Article  9  of  the  Act  in  relation  to  cities, 
villages  and  towns,  under  which  the  town  of  Hyde  Park  passed 
the  ordinance,  declares  :  '  Whenever  such  local  imjirovements 
are  to  be  made  wholly  or  in  part  by  special  assessment,  the 
council  in  cities,  or  boards  of  trustees  in  villages  shall  pass  an 
ordinance  to  that  effect,  specifying  therein,  the  nature,  charac- 
ter, locality  and  description  of  such  improvement.'  It  is  con- 
tended that  this  ordinance  did  not  comply  with  the  recjuire- 
nients  of  the  section  of  the  statute  {supra,)  and  hence  the  as- 
sessment was  illegal,  under  the  ruling  of  this  Court  in  Lms  vs. 
Chicago,  56  III,  354,  and  other  like  cases.  We  shall  not,  how- 
ever, stop  to  pass  upon  the  validity  of  the  ordinance,  as  com- 
plainant is  not  in  a  position  to  (juestion  its  validity.  //  appears 
that  the  assessment  was  made  under  the  ordinance,  and  a  return 
made  to  the  County  Court  of  Cook  County,  where  *  * 
*  after  due  notice,  it  was  confirm  d,  except  as  to  the  land  of 
certain  persons  who  appeared  and  filed  objections,  complainant 
not  being  one  of  them.  Is  complainant  concluded  by  the  judg- 
ment of  confirmation  I 

"  In  People  vs.  Brislin,  Ho  III.,  423,  where  it  was  cotitentled 
that  the  assessment  was  illegal,  because  not  levied  on  contiguous 
property,  it  was  said  :  '  This  i/uestion  and  all  others  bringing  up 
the  levy  and  assessment  have  been  passed  upon  by  the  C  'ireuit  Court, 
and  are  res  adjudicata,  and  cannot  now  be  made  in  this  Court.  Upon 
these  there  is  a  judgment  passed  by  a  Court  of  competent  juris- 


i54 

diction,  and  there  they  tnust  rest.'  This  case  has  been  followed 
by  a  number  of  other  decisions  where  the  same  doctrine  has 
been  announced.      *         * 

"  If  the  assessment  was  illegal  from  the  fact  that  it 
was  based  upon  an  insufficient  ordinance,  it  was  the 
duty  of  the  complainant  in  the  bill  to  appear  before 
THE  County  Court  when  the  application  was  made  to 
confirm  the  assessment,  and  there  make  the  objection  ; 
but  as  he  failed  to  do  so,  this  judgment  of  the  county 
Court,  when  called  in  question  collaterally,  must  be 
regarded  as  conclusive." 

(c.)  All  that  I  have  said  with  reference  to  the 
conclusiveness  of  the  judgment  of  the  County 
Court  as  to  the  existence  and  proper  adoption  and 
passage  of  the  resolution  or  order  of  the  Board 
of  Supervisors,  is  equally  applicable  to  the  notice 
required  to  be  published  by  the  Board  of  Com- 
missioners under  Section  7.  If  it  was  essential  to 
the  legal  validity  of  the  judgment  of  the  County 
Court  that  that  notice  should  be  given,  then  the 
Court  had  authority  to  examine  and  determine 
whether  it  had  or  had  not  been  so  given.  It  did 
so  determine  and  adjudge  (fol.  968);  and  its  judg- 
ment upon  that  point  is  final  and  conclusive. 

[d.)  Equally  applicable  is  it,  I  submit,  to  all 
the  alleged  irregularities  and  defects,  which  are 
pointed  out  in  the  assessment  and  report  made  by 
the  board.  These  are  all  adjudicated  and  set  at 
rest  by  the  judgment  of  the  Court : 

I.  It  is  urored  that  "  the  assessment  is  void,  be- 
cause  it  conclusively  shows  that  the  cost  exceeded 
the  benefits." 


i65 

It  may  be  admitted,  for  the  purpose  of  this  ar- 
gument, that  the  rule  of  law,  constitutional  or 
statutory,  requires  that  the  cost  should  not  exceed 
the  benefits.  It  may  be  further  admitted,  that  an 
assessment  that  violates  this  rule  is  erroneous  in 
point  of  law,  and  should  be  corrected  by  those  who 
have  authority  to  declare  the  law — the  Courts  of 
the  land  having-  jurisdiction  of  the  subject.  But, 
suppose  the  Court  having  jurisdiction  approves 
the  error,  and  consecrates  it  by  a  solemn  and  final 
judgment  ;  then,  we  simply  have  an  erroneous 
judgment,  which,  when  it  becomes  final,  is,  for  all 
the  purposes  of  that  case,  as  valid  and  binding  upon 
the  parties  as  a  legally  correct  judgment. 

Suppose  an  appeal  had  been  taken  to  this 
Court  from  the  judgment  of  the  County  Court 
finally  approving  and  confirming  the  assessment  ; 
and  suppose  the  point  had  been  made  here,  that 
the  assessment  was  in  violation  of  law  lor  the 
reason  just  stated  ;  and  sup[>ose  this  Court  hail 
affirmed  the  judgment  of  the  County  Court;  would 
any  one  contend  that  that  judgment  could  be 
thereafter  attacked  and  nullified,  because  a  subse- 
quent Court  might  be  entirely  satisfied  thai  the 
judgment  is,  in  point  of  law,  erronijous  ?  Is  not 
such  a  judgment  a  com[)I(:l<;  prot(!ctioii  lo  all  who 
act  under  it?  Is  the  j)urchas(;r  of  lh<:  bonds  of 
the  city,  who  bought  them  upon  the  sirenglh  ol 
the  solemn  judgmenl  <A'  the  Court,  decreeing  that 


1 66 

these  proceedings  are  according  to  law,  and  are 
approved  by  the  authorized  ministers  of  the  law, 
to  suffer  loss,  because  the  Court  committed  an 
error  of  law  in  pronouncing  judgment  ?  Must  a 
person  who  acts  under  a  judgment,  know  the  law 
better  than  the  Court  which  pronounces  it  ? 

I  submit,  that  it  is  too  plain  for  argument,  that, 
if  the  Court  had  jurisdiction  of  the  matter  and  the 
parties,  its  judgment  cannot  be  collaterally  at- 
tacked, however  gross  the  error  upon  its  face  may 
appear. 

2.  It  is  claimed  that  "the  assessment  is  void 
also,  because  based  upon  a  rule  so  glaringly  er- 
roneous and  flagrantly  unjust  as  to  amount  to  actual 
fraud  upon  the  taxpayers  ;  "  and  that  "  a  different 
rule  of  value  was  knowingly  adopted  with  re- 
spect to  the  property  of  those  objectors  who  ob- 
tained modifications  in  the  County  Court  from 
that  which  was  applied  to  other  property,"  and 
that  "  the  aggregate  amount  of  it  was  increased  far 
beyond  the  actual  or  pretended  cost  or  damage 
incident  to  the  improvement  by  arbitrary  additions 
wholly  unwarranted  by  law  ;"  and  that  "  the  assess- 
ment ■'■  '"  '"  was  delegated  to  experts 
and  arbitrators,  and  was  not,  in  fact,  made  by  the 
Commissioners  at  all ;"  and  that  the  proceedings 
were  conducted  with  "  indecent  haste." 

f^ow  it  can  be  imagined  that  any  of  these 
things,  supposing  them  to  be  true,  afford  the  basis. 


16; 

for  a  collateral  attack  upon  the  judg-ment  of  a 
Court,  approvingr  and  confirming  this  assessment, 
I  confess  myself  at  a  loss  to  understand.  The 
learned  counsel  appear  wholly  to  ignore  the  fact 
that  this  is  not  a  direct  attack  upon  the  assessment. 
They  seem  to  close  their  eyes  to  the  fact 
that  that  assessment  has  passed  into  judgment, 
and  is  upheld  by  a  decree  of  a  court  of  record  of 
competent  jurisdiction.  The  very  object  of  the 
stature  in  bringing  this  assessment  before  a  Court 
was  to  afford  an  opportunity  to  free  it  from  all  im- 
perfections and  errors.  When  it  has  received  the 
final  approval  of  the  Court,  no  one  can,  thereafter, 
impeach  it  for  error  ;  for  it  is.  in  contemplation  of 
the  law,  perfect. 

We  may  say  here,  as  the  Court  said,  in  /uu/a- 
fuation  District  vs.  flao^ar,  4  W.  C.  R.,  2S4.  ihai  all 
these  things  were  "  necessarily  determined  I)\-  the 
trustees  (Commissioners)  in  the  statemeiu  lo  the 
Board  of  Supervisors  (County  Court)  to  have  Ijcen 
propt-r,  and  such  as  the  law  contemi>lated.  and  i)y 
the  Board  of  Supervisors  (County  Court)  in  mak- 
ing the  order  for  the  assessment,  and  neith<'r  the 
determination  of  the  trustees,  (Commissioners) 
nor  that  of  the  Board  of  .Supervisors  (County 
Court)  can  be  contraflicted  or  imix-aclicd  in  ihis 
suit. 

I'^urther  light  is  shf-d  U|)!)n  this   fjucslidn   by  the 
following  decisions. 


1 68 

Under  the  laws  of  Virginia,  (Va.  Code  of  i860,  Ch.  56,  Sec. 
6,  et  seq.,)  it  was  provided  that  the  County  Court,  shall,  in 
the  event  that  a  company,  organized  for  a  work  of  internal 
improvement,  or  a  county  or  town,  cannot  agree  with  owners 
of  land  needed  for  purposes  of  improvement  by  such  company, 
county  or  town,  appoint  Commissioners  to  assess  the  damages.  Ten 
days'  notice  shall  be  given  of  the  application,  by  service  on  the 
tenant  of  the  freehold,  and  by  posting  and  publishing  in  a  pre- 
scribed manner,  if  there  is  no  tenant  in  the  county  or  cor- 
poration. The  Commissioners,  after  being  sworn,  shall  examine 
the  land  and  hear  evidence,  and  determine  what  will  be  just 
compensation,  making  their  report,  in  a  form  set  forth,  reciting 
their  appointment  and  its  purpose,  the  time  of  their  meeting  and 
its  adjournments,  a  description  of  the  property,  and  assessing  the 
amount  of  damages  sustained,  over  the  benefit  enurin_^  from  the 
improvement.  This  report  and  certificate  shall  be  returned  to 
the  County  or  Corporation  Court,  "  and  unless  ^ood  cause  be 
shown  against  the  report,  the  same  shall  be  confirmed  and  re- 
corded. *  *  If,  however,  good  cause  be  shown  against 
the  report,"  or  if  Commissioners  disagree  or  fail  to  report  in  a  reas- 
oaable  ti.ne,  the  Court  may  appoint  other  Commissioners,  &c. 

In  Washington  vs.  Switzer,  26  Grattan,  661,664, 
the  question  arose  as  to  how  far  the  confirmation  of 
the  report,  under  this  statute,  was  conclusive  against 
objections  to  it.  The  case  is  an  authority  showing 
the  great  latitude  which  is  afforded  for  objection 
at  the  time  of  the  confirmation  of  the  report,  the 
p  irties  affdcted  not  being  confined  to  the  point  that 
the  award  of  damages  is  too  high  or  too  low,  but 
being  at  liberty  to  raise  every  other  objection  chat 
may  validly  be  urged  against  the  confirmation. 
It  was  there  said  : 
"  The  Court  is  of  opinion  that  when  the  report  of  Commis- 
sioners *  *  *  is  returned  to  the  County  or  Cor- 
poration Court,  either  party  may  show  cause  against  its  confir- 


169 

motion,  jipon  the  ground  of  excessive  or  inadejuate  compensation 
and  damages,  improper  conduct  of  the  Commissioners  in  refusing 
or  failing  to  hear  legal  and  proper  evidence,  or  by  proof  of  k-^s 

OTHER  FACT,  TENDING  TO  SHOW  THAT  SAID  REPORT  OUGHT  NOT 
TO  BE  ADOPTED," 

Alexander  vs.  The  Mayor,  5  Gill.,  3S3,  was  a 
bill  in  chancery  to  enjoin  the  collection  of  an  as- 
sessment for  the  improvement  and  extension  of  a 
public  street.  The  ordinance  under  which  the  as- 
sessment was  made  provided  for  an  appeal  from 
the  Commissioners  to  the   Baltimore  City  Court, 

The  objections  urged  against  the  assessment 
were  that  the  Commissioners  failed  to  assess  all 
the  property  benefited,  omitting  one  street  entire- 
ly ;  and  that  they  omitted  certain  church  property, 
and  unjustly  and  arbitrarily  and  without  reference 
to  the  special  benefits  received  by  other  persons, 
imposed  upon  and  apportioned  among  them  the 
tax  that  should  have  been  levied  upon  such  ex- 
empt property,  and  that  they  otherwise  proceeded 
arbitrarily,  irregularly  and  oppressively. 

The  Chancellor  refused  the  injunction,  holding 
that  for  the  alleged  improper  conduct  of  the  Com- 
missioners redress  might  have  been  had  by  appeal. 

Said  the  Appellate  Court,  at  p.  39.S  : 

"It  is  perfectly  clear  that  the  flourt  of  Chancery  has  no 
jurisdiction  tosuijervise  or  re-cxaniinc  the  |>ro(eedings  and  judg- 
ment of  the  City  Court  with  respect  to  these  assessnient.s.  *  * 
And  we  think  that  the  order  of  Chancery  refusing  this  injunc- 
tion was  correct  and  must  be  affirmed." 


170 

People  vs.  Brislin,  80  111.,  423. 

This  was  an  application  for  judgment  against 
certain  lots  benefited  by  the  laying  out  of  a  park, 
for  assessments  imposed  thereon  by  the  corporate 
authorities,  and  which  the  owner  had  suffered  to 
become  delinquent. 

By  the  Act  under  which  the  park  was  created  it 
was  provided,  that  a  Board  of  Park  Commissioners 
should  have  control  of  the  improvements,  and 
should  make  a  special  assessment  to  maintain  them 
upon  the  contiguous  property  adjudged  by  them  to 
be  specially  benefited  thereby  ;  and  that  when 
completed  they  should  file  their  assessment  with 
the  Clerk  of  the  Circuit  Court  of  the  County,  and 
give  notice  of  such  filing,  and  of  an  application  to 
the  Court  for  confirmation  ;  and  that  the  Court 
thereupon,  after  proof  of  due  notice,  should  have 
power  to  hear  and  determine  such  application. 

Under  this  Act  the  Commissioners  made  their 
assessment  roll,  which  they  duly  reported  to  the 
Circuit  Court  and  filed  with  the  Clerk,  and  the 
assessment  was  thereafter  duly  confirmed. 

The  finding  of  the  Court  was  as  follows  : 

"  That  all  the  preliminary  steps  had  been  taken  by  the  cor- 
porate authorities,  and  that  the  assessment  was  made  in  propor- 
tion, as  near  as  may  be,  to  the  benefits  resulting  from  the  im- 
provement to  each  separate  lot,  block  or  parcel  of  land  mentioned 
in  the  assessment  roll,  and  that  all  and  every  of  the  proceedings 
of  the  Commissioners  in  the  premises  were  regular,  valid  and  in 
conformity  with  law,  and  that  they  have  done  all  things  required- 


171 

of  them  by  law  to  make  this  special  assessment  a  legal,  just, 
valid  and  binding  assessment,  in  whole  and  every  part  thereof, 
and  that  the  same  and  every  part  thereof  was  a  j  ust  and  fair  as- 
sessment in  the  premises." 

The  Cojrt,  in  delivering  its  opinion,  said  : 
"  The  point  is  pressed,  that  this  assessment  is  not  on  con- 
tiguous property.  This  question  and  all  others  bringing  up  the 
levy  and  assessment,  have  been  passed  upon  by  the  Circuit 
Court,  and  are  res  adjudicata,  and  cannot  now  be  made  in  this 
Court.  Upon  this  there  is  a  judgment  pronounced  by  a  Court  of 
competent  Jurisdiction,  and  there  they  nmst  rest." 

Andrews  vs.  T/ie  People^  84  III,  28,  arose  under 
the  same  statutes  as  those  referred  to  m  People  vs. 
Brislin,  the  Park  Commissioners  making  the  as- 
sessment  roll,  and  referrino^  it  to  the  Circuit  Court 
of  the  County  for  confirmation. 

The  Court,  at  page  },T),  said  : 

"  It  is  *  urged  that  the  assessment  is  void,  because  it  does 
not  appear  fro.ii  the  proceedings  that  the  property  is  benefited 
to  the  amouit  assessed  thereon."  (Precisely  the  same  objection 
as  that  raised  here,  that  the  costs  exceeded  the  benefits.) 
"  The  assessment  was  confirmed  by  the  Circuit  Court,  a  Court 
of  competent  jurisdiction.  No  appeal  has  ever  been  taken  from 
that  judgment,  and,  in  a  proceeding  to  collect  the  amount  found 
by  the  decree  of  the  Circuit  Court,  the  qucstiori  raised  must  hi' 
considered  res  adjudicata." 

It  was  likewise  urg(^d  that  ihc  Commissioners 
had  no  power  to  ap]K)riion  the  cinin;  asse.ssment, — 
as  they  did — into  certain  sums,  payable  annually  ; 
that  they  were  authorized  to  make  onl\'  one 
apportionment,  and  when  that  lor  the  fn-si  year 
was  fixed,  their  authority  was  exhausted. 

"  But,  were  it  otherwise,"  said  the  (Jourt,  at  p.  .^5,  "tht'  ap 
I»cllants  cannot  go  behind  the   confirmation  of  the   assessment 


172 

made  by  the  Circuit  Court,  or  take  advantage  of  such  defects  in 
a  collateral  proceeding." 

ProiU  vs.  The  People,  83  III,  154,  158. 

Application  for  judgment  and  order  of  sale  of 
land  for  the  collection  of  a  special  assessment. 
The  ordinance  under  which  the  work  of  improve- 
ment was  done,  contained  forty  distinct  sections, 
each  providing  for  a  separate  and  distinct  improve- 
ment and  assessment.  It  was  objected  that  the 
assessment  rolls  under  each  of  the  sections  of  the 
ordinance  were  presented  to  the  Court  for  confirm- 
ation at  the  same  time,  and  were  all  confirmed  by 
one  and  the  same  order,  and  in  a  single  proceed- 
ing. 

The  Court  said  : 

"  If  there  were  error  in  the  hearing  on  confirmation  of  all 
the  assessment  rolls  at  onetime,  which  is  by  no  means  admitted, 
it  would  not  render  the  order  of  confirmation  void.  The  ob- 
jection should  have  been  raised  in  the  proceeding  where  the 
error  was  committed,  and  cannot  be  heard  in  this  collateral 
proceeding." 

In  LeJimer  vs.  The  People,  80  111.,  601,  which 
was  an  appeal  from  a  judgment  of  the  County 
Court  of  Cook  County,  rendered  for  a  special  as- 
sessment levied  on  certain  lands  benefited  by  the 
improvement  of  a  street  known  as  Parker's  Avenue, 
and  which  was  reported  by  the  Collector  to  be  de- 
linquent, the  Court  said  : 

"  It  is  now  too  late  to  inquire  into  the  nature  of  Parker's 
Avenue, — whether  public  or   private.      That   objection  should 


173 

have  been  made,  when  application  for  confirmation  of  the  assess- 
ment was  made  of  which  appellant  had  notice  by  publication. 
It  is  now  res  adjudicata.  It  must  have  been  adjudged  a  public 
street  when  the  order^of  confirmation  was  entered,  and  there  is 
no  appeal  from  that." 

Blake  vs.  The  People,  109  111  ,  504,  was  an  ap- 
peal from  the  judgment  of  aCountyCourt,  in  favorof 
the  collector  of  the  County  against  a  certain  tract  of 
land,  for  the  amount  of  a  special  assessment  imposed 
thereon  for  drainage  purposes.  The  statute,  under 
which  the  assessment  was  made  provided  for  the 
formation  of  a  drainage  district.  After  the  district 
was  created,  it  provided  that  a  jury  should  be  im- 
panelled to  assess  the  damages  and  benefits,  that 
they  should  make  an  assessment  roll,  showing 
the  amount  of  damages  and  benefits  sustained  by 
each  land-owner  affected,  that,  after  its  completion 
they  should  fix  a  tinie  and  place,  when  and  where 
they  would  attend  for  its  correction,  and  that  the 
Commissioner  or  the  jury  should  give  ten  days  notice 
of  such  time,  by  posting  and  publishing  notices, 
prior  to  the  time,  &c.,  that  they  should  thereupon 
hear  objections  and  correct  or  confirm  said  assess- 
ment roll,  and  thereafter  return  it  to  the  Court, 
where  it  should  again  come  on  for  hearing  at  the 
next  term. 

It  was  urged  as  an  objection  to  the  proc(;edings 
that  the  notices  prior  lo  the  confirmation  ol  the 
assessment  roll  ijy  the  jury,  were  not  given  as  rc- 
c[uired  by  the  staluUj. 


174 

The  Court  held  that  the  land-owner  was  not  en- 
titled to  raise  the  point  in  this  collateral  proceed- 
ing— that  he  was  concluded  by  the  confirmation  of 
the  assessment.      It  was  said  : 

"  All  objections  which  could  have  been  urged  at  the  time  of  the 
confirmatio7i  of  the  assessment  roll  and  which  were  not  then  urged, 
must  be  considered  as  waived,  and  cannot  be  urged  for  the  first 
time  on  application  for  sale  of  lands  for  a  delinquent  assessment. 
Such  has  been  the  repeated  ruling  of  this  Court  in  cases  of 
special  assessments  for  the  opening,  repair  and  improvement  of 
streets,  and  there  is  no  difference  in  principle  between  those 
cases  and  the  present."     - 

Matter  of  Widening  Broadivay,  6i  Barb.,  483. 
This  was  an  appeal  from  an  order  setting  aside  the 
order  of  confirmation  by  the  Supreme  Court  of  a 
special  assessment  for  widening  Broadway  in  the 
City  of  New  York.  The  Commissioners  of  esti- 
mate and  assessment,  returned  their  report  to  the 
Supreme  Court,  where  it  was  confirmed.  The 
Judge,  at  special  term,  found  that  there  had  been 
error,  mistake,  irregularity  and  illegal  acts  in  the 
assessment  proceedings,  and  that  the  assessment 
of  benefits  and  award  of  damages  had  been  un- 
fair, unjust,  inequitable  and  oppressive  as  respected 
the  City  of  New  York,  wherefore,  the  order  of  con- 
firmation was  set  aside. 

Said  the  Court  at  page  486  : 

"  Supposing  *  that  the  order  of  confirmation  when  made 
was  not  appealable,  can  the  Court  entertain  a  motion  to  vacate 
it  for  error,  mistake,  irregularity  or  illegality  ?     *     *     The  order 


/D 


of  confirmation  *  *  *  is  an  order  of  the  Supreme  Court, 
not  of  any  quasi-judicial  tribunal,  possessing  limited  powers.  It 
is  a  final  order  made  in  a  special  proceeding.  The  Court  has 
appointed  certain  officers  to  ascertain  and  report  upon  certain 
disputed  facts,  viz :  the  value  of  the  property  taken  and  the 
benefit  accruing.  These  officers  have  reported  to  the  Court, 
and  the  Court  has  confirmed  the  report.  In  what  way  does 
this  order  of  confirmation  differ,  as  to  its  finality,  from  a  judg- 
ment of  the  same  Court,  entered  on  the  report  of  Commissioners 
for  interests  in  partition  ?  " 

3.  It  is  earnestly  urged  that  "the  assessment  is 
rendered  void,  also,  by  the  fact  that  one  of  the 
Commissioners  and  one  of  the  experts  who  made 
the  appraisement  were  personally  interested  in  the 
property  affected  by  the  assessment." 

The  interest  of  the  Commissioner,  if  it  was  a  dis- 
qualification, might  have  been  urged  in  the  County 
Court  in  opposition  to  the  contlrmaiion  of  the  re- 
port. It  can  not  be  urged  now  to  ox'erthrow  the 
judgment  of  that  Court. 

Matter   of  Southern    Boulevard,    3    Aljb..    Pr. 

(N.  S.)447. 
Motion  to  confirm  the  report  of  Commissioners 
of  estimate  and  assessment  -appointed  by    an  art 
laying  out  a  highway. 

"  It  is  urged,"  said  the  Court,  "  that  one  of  the  Commission- 
ers owned  some  lots,  which  have  been  taken  for  the  improve- 
ment, and  was  therefore  incompetent  to  act,  upon  the  maxim 
that  no  man  can  be  judge  of  his  own  cause.  *  *  There 
are,  however,  I  think,  several  answers  to  it.  One  is,  that  the 
maxim  does  not  govern  the  case.  It  a|)plics  to  judicial  officers 
but    not    to  officers  whose  duties  partake  of  an  administrative 


176 

character,  and  are  only  quasi  judicial,  (People  vs.  Wheeler  2 1 
N.  Y.,  82.)  In  this  case,  Denio,  J.  says  :  "An  act  of  public 
administration,  though  requiring  the  exercise  of  judgment;  is 
quite  a  different  thing  from  the  dispensing  of  justice  betwten 
man  and  man.  If  this  objection  should  prevail,  assessors, 
highway  commissioners,  tax  commissioners,  and  many  other 
boards  of  public  officers,  would  be  incompetent  to  act,  and  it 
would  be  impracticable  to  exercise  some  of  the  most  important 
functions  of  the  government.  The  public  interest  is  supreme. 
Whenever  compatible  with  this,  officers  like  the  one  in  question, 
should  be  disinterested.  It  rests  exclusively  with  the  Legislature, 
however,  to  determine  whether  in  cases  like  this,  interest  shall 
disqualify.  The  Constitution  provides,  that  compensation  for 
private  property,  taken  for  public  use,  shall  be  ascertained  by  a 
Judge  or  by  Commissioners,  as  shall  be  prescribed  by  law.  *  In 
this  case,  the  only  qualification  for  the  Commissioners  prescribed 
by  the  Statute  is,  that  they  shall  be  residents  of  the  County.  * 
*  *  Furthermore,  the  objection  should  have  been  made  at 
the  hearing  of  the  application  for  the  appointment  of  Com- 
missioners. Consent,  or  at  least  a  waiver  of  the  objection  may 
be  fairly  inferred,  from  an  omission  to  make  it  at  the  proper 
time.  In  such  a  case  it  would,  *  be  monstrous  to  hold,  that 
the  mere  presence  of  the  interested  Commissioner,  vitiated  the 
proceedings." 

In  People  vs.  Brislin,  80  111.,  423,  433,  the  Court 

said  : 

"  The  fact  that  the  Commissioners  who  made  the  estimate 
and  assessments  were  property  owners  in  the  towns,  could  not 
disqualify  them.  They  were  made  by  the  law  the  tribunal  for 
the  purpose,  and  were  required  to  take  an  oath  faithfully  and 
impartially  to  discharge  their  duties  for  the  public  interest.  We 
are  of  opinion  they  were  not  dis(iualified  ;  the  law  appointing 
them,  qualified  them." 

In   State  vs.  Nelson,  57  Wise.  147,    154,   Com- 
missioners   were  appointed    by    the  order  of  the 


County  Court,   to  review  the  action   of  a   Board 
of  Supervisors  refusing  to  alter  a  highway. 

"It  happened,"  said  the  Court,  "that  one  of  the  three  Com- 
missioners thus  selected  was  one  of  the  petitioners  for  the  alter- 
ation of  the  highway.  This  settled  that  he  was  not  disinter- 
ested, within  the  meaning  of  the  statute,  and  was,  therefore, 
hot  qualified  to  act  as  a  Commissioner.  It  does  not  appear 
that  any  objection  was  made  to  his  competency  before  the 
County  Judge.  Because  there  was  no  objection  thereto,  such 
selections  did  not  invalidate  the  proceedings.  *  *  Even  if  objec- 
tion in  such  case  be  taken  in  due  time,  it  will  not  invalidate 
the  proceedings  of  the  Commissioners,  when  attacked  collater- 
ally." 

.  In  Matter  of  Central  Pa7'k,  i6  Abb.  Pr.,  56,  70, 
Commissioners  of  appraisal  were  appointed,  in 
conformity  with  N.  Y.  laws  of  1859,  Ch.  101,  to 
assess  adjoining  property  in  Xew  York  City  for  the 
benefits  resulting  from  the  laying  out  of  Central 
Park.  It  was  contended  that  all  the  proceedings 
in  the  case  were  void,  inasmuch  as  one  of  the 
Commissioners  was  appointed  in  direct  contraven- 
tion of  the  terms  of  the  Act,  providing  that  no  in- 
terested party  should  be  appointed.  It  appeared 
that  he  held  a  mortiraofe  on  some  of  the  lands 
affected.  Held :  The  objection  should  have  been 
taken  at  the  time  of  the  ai)pointment  of  the  Com- 
missioners. It  was  too  late  to  urge  it,  or  applica- 
tion to  confirm  the  r(!port. 

Said  the  Court  : 
.   "The   papers  show   that  one  of  the  Commissioners  held  a 
mortgage   on   some  proj^-rty   on  47th  street.     *     *      I'he  pro- 
vision of  the   statute  in  regard  to  interest   is   merely   directory. 
Jt  may  have  been  if  vahd,  a  good   reason  to  apply  for  a  change 


178 

of  the  Commissioner,  but  was  not  a  jurisdictional  matter  to 
affect  the  validity   or  regularity   of  the  proceedings." 

Pittsburg  vs  Cluley,  74  Pa.,  St.  262,  4,  was  a 
scire  facias  upon  a  municipal  claim  for  $133  by  the 
City  of  Pittsburg  against  defendant,  for  opening  a 
certain  street. 

An  assessment  was  made  by  receivers  of  the 
damages  and  benefits  resulting  from  the  opening, 
and  reported  to  and  approved  by  the  council,  and 
thereafter  an  appeal  was  taken  by  an  interested 
party  to  the  Court  of  Quarter  Sessions  and  the  as- 
sessment was  confirmed. 

It  was  urged  by  defendant  that  one  of  the  re- 
ceivers was  not  a  freeholder,  as  required  by  the 
statute. 

"  If,"  said  the  Court,  "  the  assessment  was  not  valid,  it  can 
no  more  be  collaterally  questioned  or  impeached  on  the  ground 
that  one  of  the  receivers  was  not  a  freeholder,  than  a  judg- 
ment or  verdict,  because  one  of  the  jurors  by  whom  it  was  found, 
was  not  qualified  to  serve.  The  confirmation  of  the  report  has 
all  the  legal  effects  and  incidents  of  the  judgment  or  decree  of  a 
Court  of  C07npetent  jurisdiction — one  of  which  is,  that  it  must  be 
treated  as  valid  and  binding  until  reversed  or  set  aside,  and  can- 
not be  assailed  except  for  fraud  or  collusion. 

"  The  only  complaint  is  that  one  of  the  receivers  by  whom  (the 
assessment)  was  made,  was  not  a  freeholder.  This  objection 
would  have  availed,  if  it  had  been  made  in  time.  But  it  comes 
too  late,  and  cannot  be  set  up  here.  The  confirmat'.oti  of  the  re- 
port must  be  regarded  as  conclusive  of  the  assess  me  fit." 

In  Williams  vs.  Mitchell,  49  Wis.,  284,  290, 
an  action  of  trespass,  the  defendant  justified 
on    the    ground    that     he      was    lawfully     remov- 


1/9 

ing  obstructions  from  a  public  highway.  It 
was  denied  that  the  locus  in  quo  was  a  public 
highway,  the  proceedings  purporting  to  lay  out  the 
same,  being  for  various  reasons  void.  One  of  the 
main  objections  urged  was,  that  the  Commission- 
ers for  altering  the  road,  were  signers  of  the  peti- 
tion for  the  alteration,  and  consequently  interested 
parties. 

Lyon,  J.,  said  :  "  Were  the  Court  reviewing  the  proceedings 
of  the  Commissioners  on  certiorari,  brought  in  pro[)er  time,  it  is 
very  probable  that  their  determination  would  be  reversed,  be- 
cause the  justice  *  appointed  Commissioners  who  were 
not  disinterested.  But  this  is  an  irregularity  only,  and  not  juris- 
dictional. *  Being  merely  an  irregularity,  it  is  not  avail- 
able in  a  collateral  action.  Although  the  Commissioners  were 
not  disinterested,  their  determination  is  not,  therefore,  void,  but 
is  valid  and  conclusive  until  assailed  in  a  direct  proceeding  to 
set  it  aside.  This  is  not  such  a  proceeding  ;  and  therefore  in 
this  action,  it  must  be  held  that  such  determination  is  valid.  " 

Brock  vs.  Hishen,  40  Wis.,  674,  was  also  an 
action  of  trespassand  foran  injunction,  thedefendants 
justifying  on  the  ground  that  the  locus  iu  quo  was 
a  public  highway,  and  that  thc^y  entered  uj)on  and 
were  tearing  dtnvn  fences.  &c.,  on  the  same,  for 
the  purpose  of  oi^ening  the  highway,  under  the  di- 
rection of  the  proper  town  officers.  On  motion  to 
dissolve  the  injunction  it  appeartxl.  that  a  jx-tiiion 
was  presented  to  the  .Supervisors  tor  iIk-  la\'ing 
out  of  the  highway — that  they  heard  the  same  and 
determined  not  to  lay  It  out— that,  on  the  appli- 
cation of  a  land-owner  affected  thereby,  Commis- 
sioners were  appointed  to  review  the  determination 


i8o 

of  the  Supervisors,  which  resulted  in  a  reversal  of 
the  former  order,  and  in  an  order  to  open  the  high- 
way. It  was  urged  that  one  of  the  Commissioners 
was  an  interested  party,  and  that  this  vitiated  the 
proceedings. 

,  Said  the, Court :-  "The  name  of  the  petitioner  who  had  pre- 
viously acted  as  a  Supervisor  in  the  matter  of  the  same  highway, 
should  have  been  stricken  from  the  list,  had  the  objection  been 
taken  when  the  Commissioners  were  selected.  We  cannot  say 
that  one  who  had  previously  decided,  under  the  sanction^  of  his 
official  oath,  that  the  highway  ought  to  be  laid  out,  was  disinter- 
ested, within  the  meaning  of  the  statute  prescribing  the  qualifi- 
cations of  such  Commissioners.  But  we  think- the' objection' 
comes  too  late.  It  is  not  unlike  the  case  where  an  incompetent 
juror  is  permitted  to  be  sworn  in  a  case  without  objection. 
Whether  the  fact  be  known  or  unknown  to  the  defeated  party, 
such  incompetency  is  not  ground  for  reversing  the  judgment- 
In  some  cases  it  is  not  even  ground  for  a  new  trial." 

II.  The  judgment  of  tpie  County  Court  is  a 

CONCLUSIVE  adjudication  IN  ALL  COLLATERAL 
ACTIONS  THAT  THE  AcT    ITSELF  IS  CONSTITUTIONAL. 

In  discussing  the  question,  it  ought  to  be  borne 
in  mind  that  the  position  which  we  take  is  not  that 
ascribed  to  us  by  the  learned  counsel  for  the  plaintiff.. 
They  assert  [p.  57  of  closing  brief,]  that  our  argu- 
ment is  that  "  a  Court  created  by  an  uncontsitu- 
tional  statute,  and,  therefore,  not  a  Court  at  all,  has 
nevertheless,  power  to  determine  conclusively  or 
against  collateral  attack,  that  the  statute  is  consti- 
tutional and  consequently  that  it  is  a  Court  and 
has  authority  to  adjudicate  upon  the  matter  com- 
mitted to  it  by  the  statute;  thus  breathing  into  its. 


i8i 

own  dead  nostrils  the  breath  of  life."  Of  course, 
this  arg-ument  is  absurd  ;  but,  it  is  not  the  argu- 
ment which  we  present  in  this  case.  We  say  : 
The  Court  existed  before  and  independent  of  this 
statute.  It  was  created  by  the  Constitution.  It 
was  a  Court  of  record.  Its  proceedings  were  car- 
ried on  with  the  formality  and  regularity  which  at- 
tend the  acts  of  the  highest  Courts  of  original  juris- 
diction. It  was,  by  the  Constitution,  given  power 
to  hear  and  determine  special  proceedings — a  class 
to  which  the  opening  and  widening  of  streets  be- 
long. When,  therefore,  parties  came  before  it  in  a 
proceeding  to  widen  a  street,  and  claimed  to  act 
under  and  in  pursuance  of  a  statute  of  the  State, 
it  necessarily  became  the  duty  of  the  Court  to  de- 
termine whether  it  would  entertain  jurisdiction  of 
and  proceed  in  the  matter.  That  question  was 
judicial  and  the  decision  of  it  was  a  judicial  act 
within  the  power  of  the  Court  to  pcrlonn.  The 
Court  might  decline  jurisdiction  on  th('  ground 
that  the  statute  which  attempted  to  give  it  juris- 
diction over  that  proceeding  is  unconstituiional,  or 
it  might  entertain  jurisdiction  on  the  ground  ih.il 
the  statute  is  constitutional.  In  this  case  the 
Court  entertain(xl  the  case  and  gave  judgment 
therein,  and  our  position  is.  that  :  In  .ippn>\ing 
and  confirming  the  report  of  the  Commissioner.'^ 
the  C(Hjnty  Ccniri  judicially  dec:lan:d  it  legally  cor- 
rect— conformable   to   the   C(^nstilulion    and    laws. 


I82 

Its  judgment,  though  It  may  be  erroneous,  is  con- 
clusive on  that  point. 

The  only  thing  which  brought  the  Court  into 
relation  with  these  proceedings  and  gave  it  any 
right  or  power  to  act  therein,  was  the  Constitution 
and  the  Dupont  Street  Act.  The  proceedings 
themselves  belonged  to  a  class  of  which,  in  proper 
cases,  the  County  Court  had  jurisdiction.  They 
were  special  proceedings  under  the  Constitution. 
The  Constitution,  though  conferring  the  jurisdic- 
tion in  general  terms,  does  not  enumerate  the  par- 
ticular occasions  in  which  it  shall  be  exercised. 
To  do  this  a  statute  is  required.  There  must  be 
a  law  applicable  to  the  particular  case  before  the 
Court. 

When  contesting  parties  come  before  a  Court 
and  demand  the  exercise  of  its  jurisdiction,  may 
not  the  Court,  at  the  verv  threshold,  ask  :  Is  there 
any  law  requiring  the  Court  to  take  action  in  this 
matter  ?  li',  in  response,  a  paper  is  produced  pur- 
porting to  be  a  statute,  may  not  the  Court  then 
ask  :  Is  this  statute  constitutional  ?  It  seems  to 
me  there  can  be  but  one  answer  to  these  questions. 
Would  any  one  contend  that,  if  a  dissatisfied 
property-owner,  on  the  line  of  Dupont  Street,  had 
come  into  Court,  when  the  report  was  up  for  con- 
firmation, to  urge  that  the  Dupont  Street  Act  was 
unconstitutional,  the  Court  must  have  refused  to 
hear  him  ?     Would  the  proposition  be  maintained^. 


i83 

that,  if  the  Court  did  hear  hini,  and  became  entirely 
satisfied  that  the  Act  was  unconstitutional  and 
void,  it  would,  nevertheless,  have  been  bound  to 
act  and  examine  the  report ;  and,  if  it  found  it  in 
accordance  with  the  void  statute.confirm  it  ?  Would 
it  be  claimed  that,  if  the  County  Court  did,  under 
such  circumstances,  confirm  the  proceedings,  and 
appeal  was  taken  to  the  Supreme  Court,  that  that 
Court  would  have  no  authority  to  decide  that  tlie 
Act  was  unconstitutional  and  dismiss  the  whole 
proceedings  as  null  and  void  ?  These  questions 
cannot  be  debated.  To  state  is  to  answer  them. 
Courts  are  the  ministers  of  the  law.  If  thcM-(?  is 
no  law,  they  have  no  office  to  perform.  When 
they  act  in  a  given  case,  the  very  first  qu(;stii)n 
which  they  necessarily  determine  is,  thai  the  law- 
commands  their  action.  It  was  said,  and  no  (l(uil)t, 
well  said,  by  this  Court  on  an  appeal  from  ;ui  ortler 
of  the  County  Court  confirming  an  assessmeni  un- 
der a  statute  precisely  similar  to  the  present:  "  If 
the  appellant  had  succeeded  in  convincing  us  that 
this  is  a  case  at  law  involving  the  legality  of  an  as- 
sessment we  ivould  have  been  awipclled  to  hold  thai 
the  Act  conferriiio  jui'isdiclioii  on  the  Cokii/x  Court 
wa^  unconstitutional  and  void,  and  the  7vhole  nia- 
cJiinery  for  enforein^'  the  assessment  would  have 
fallen  2uith  the  /let."  '  . 

'    Houf^hton's  Appeal,  42  Cal.,  57. 


i84 

Suppose,  then,  that  an  appeal  had  been  taken 
in  this  case  and  that,  on  behalf  of  some  dissatis- 
fied property  owner,  the  learned  counsel,  who  has 
just  addressed  your  Honors,  should  have  urged 
before  that  Court  all  his  present  objections  to  the 
constitutionality  of  this  Act,  and  supported  them 
by  the  same  learned  argument  which  we  have 
heard  ;  and  suppose  the  Supreme  Court  had,  upon 
mature  deliberation,  delivered  a  judgment  over- 
ruling all  these  objections  and  expressly  determin- 
ing the  Act  to  be  constitutional,  w^ould  any  one 
contend  that  the  validity  of  the  Act  would  not 
have  thus  become  res  adjudicata  and  forever 
placed  beyond  dispute?  If  the  Board  had  issued 
these  bonds,  after  such  a  decision,  and  a  purchaser 
in  good  faith,  had  bought  and  paid  for  them,  v\^ould 
any  one  contend  that  the  question  of  the  constitu- 
tionality of  the  Act  could,  as  against  him,  be  again 
agitated  ?  Would  not  the  judgment  of  the  high- 
est Court  of  the  State,  rendered  in  the  proceeding 
itself,  afford  him  the  same  protection  which  final 
judgments  always  afford  to  those  who  act  under 
them  ?  When  he  came  to  collect  his  bond,  would 
he  again  have  to  maintain  the  constitutionality  of 
the  t\.Q.l,  which  the  Supreme  Court  had,  in  that 
Very  case,  declared  constitutional  ?  Neither  reason- 
ing nor  authority  is  required  to  answer  these  ques- 
tions ;  they  answer  themselves. 

But,  suppose  the  question  of  the  constitutionality 


i85 

of  the  Act  had  not  been  expressly  debated  in  the 
Supreme  Court,  but  that  Court  had,  nevertheless, 
finally  approved  and  confirmed  the  proceedings, 
would  its  judgment,  so  far  as  the  constitutionality 
of  the  statute  is  concerned,  be  any  the  less  con- 
clusive ?  Clearly  not ;  for,  as  between  the  parties 
to  an  action,  a  final  judgment  is  conclusive  of 
every  question  of  law  and  fact  which  might  have 
been  litigated,  whether,  in  point  of  fact  it  was 
litigated  or  not.  Take  a  simple  illustration  :  A 
sues  B  to  collect  a  money  demand  arising  under 
a  statute.  He  obtains  a  judgment,  which  is  finally 
affirmed  on  appeal  to  the  Supreme  Court.  Exe- 
cution issues.  B's  land  is  sold  and  bought  in  by 
C,  who  obtains  a  Sheriff's  deed.  In  a  subsequent 
case,  arising  under  the  same  Act,  the  point  is,  tor 
the  first  time,  made  in  the  .Supreme  Court,  that  the 
Act  is  unconstitutional,  and  the  Court  so  holds. 
Does  the  second  decision  affect  C's  title.'*  Is 
the  judgment,  under  which  he  deraigns  title,  any 
the  less  valid,  because  an  examination  ot  the 
arguments  may  reveal  the;  fact  that  counsel 
neglected  to  call  the.  Court's  aLlciiiion  to  the  fact 
that  the  Act  was  in  violation  of  the  Consiilulion  ? 
Would  the  judgment  hav<;  l)(-en  any  more  effective 
for  C's  protection,  if  th<:  objection  to  the  constitu- 
tionality of  the  Act  had  b(,'en  ttxpressly  made  and 
overruled  by  the,  Coun?     ()b\ioiisly  noi. 

I)Ut,  iJKt  judgment  of   ilie    Count)-    Conrl,  if  nn- 


:i86 

appealed  from,  is  just  as  final  and  conclusive  upon 
every  question  as  the  judgment  of  the  Supreme 
Court.  No  one  would  contend  that,  if  the  ques- 
tion of  the  constitutionality  of  the  Act  can  be 
raised  in  the  Supreme  Court,  it  can  not  be  raised 
in  the  County  Court. 

I  contend  that  the  judgment  of  the  County  Court 
was  equally  conclusive  of  the  legality  of  the  pro- 
ceedings, whether  it  was  rendered  by  default  or 
upon  appearance  and  contest.  The  illegality  of 
the  proceedings — if  they  were  illegal — the  uncon- 
stitutionality of  the  Act — would  have  afforded  a 
complete  defense  to  the  demand  for  judgment 
made  against  the  property -holders  in  the  County 
Court.  If,  being  cited  to  appear,  they  permitted 
judgment  to  be  taken  against  them  by  default  in  a 
Court  which,  under  the  Constitution  had  jurisdic- 
tion of  the  subject  matter,  they  stand  in  the  po- 
sition of  those  who,  having  a  perfect  defense  to  an 
illegal  demand,  neglect  or  refuse  to  make  it.  It 
is  too  late,  after  a  judgment  is  pronounced,  to 
claim  the  benefit  of  that  defense  in  a  collateral 
proceeding.  If  they  did  appear  and,  having  urged 
their  defense,  the  Court  found  against  them,  they 
are  none  the  less  bound  by  the  judgment,  because, 
in  a  collateral  proceeding,  it  may  conclusively  be 
shown  to  be  erroneous, 

I  conclude,  therefore,  that  the  final  judgment 
confirming  the  report  of  the  Board  was  an  adjudi- 


cation  that  the  proceedings  were  legal — that  the 
Act  under  which  they  were  taken  was  constitu- 
tional. 

The  contention  which  I  make  under  this  head 
is  well  illustrated  and  fully  supported  by  the  de- 
cision of  the  Court  of  Appeals  of  New  York,  in 
1877,  in  the  case  of-  Hallock  vs.  Doniiny,  69  N. 
Y.,  238.      The  facts  were  these  : 

A  Justice  of  the  Peace  pronounced  judgment 
by  default  against  a  defendant  in  an  action  to  re- 
cover a  penalty.  Process  being  issued  under  the 
judgment,  the  defendant  in  that  action  brought 
trespass.  The  justification  was  the  judgment  of 
the  Justice.  In  reply,  it  was  contended  that  the 
Act  imposing  the  penalty  was  unconstitutional. 
The  Court  of  Appeals,  not  deciding,  but  assuming 
the  Act  to  be  unconstitutional,  held  the  judgment 
of  the  Justice  to  be  vaHd,  and  said  : 

"The  Justice  of  the  Peace  had  jurisdiction  of  the  subject 
matter  of  the  action,  being  for  the  recovery  of  a  penalty  less  than 
two  hundred  dollars  (Code,  i^  53.)  He  had  jurisdiction,  by  the 
personal  service  of  a  summons,  of  the  defendant  therein,  the 
present  plaintiff,  and  no  objection  was  taken  to  the  form  or  the 
regularity  of  the  proceedings.  The  jurisdiction  of  the  ina\^istrate 
was  not  derived  from,  and  did  not  depend  upon,  the  .ietwhieh  is 
challenged,  but  upon  the  general  statutes  of  the  State.      \\v.  u\i) 

JURISDICTION  TO  PASS  UPON  KVKRV  QUKSTION  INVOl.Vl.l.  IN  THK 
ACTION,  INCI.UlJiNf;  THK  VAMDll  V    OK  THK  I-AWS    IMI'OSINO   THK 

PKNALTV.  The  Judgment  SO  long  as  it  remains  unreversed,  rvas 
for  every  purpose  as  conclusive  between  the  parties,  and  upon  every 
tjuestion  necessarily  embraced  in  the  judgment,  as  would  have  been 
that  of  the  highest  Court  of  record  i.i  the  State." 


Precisely  the    same  question    arose    under    the 

same  state  of  facts,  and   was  decided   in  the  same 

manner   by  the   Supreme   Court  of   Kentucky   in 

1837,  in  the  case  of  A  7"  no  Id  vs,.  Shields,  5  Dana, 

18. 

"  In  our  judgment,"  said  the  Court,  ''if  the  unconstitution- 
ality of  the  Act  of  1836  be  admitted,  nevertheless,  the  magis- 
trate below  had  jurisdiction  to  decide  on  the  cases  brought  before 
him,  itivolving  the  validity  of  the  statute,  and  the  consequential 
right  to  the  sums  of  money  claimed  under  it.  *  *  * 
The  magistrate  having  jurisdiction  over  the  subject  matter  (debt 
on  implied  contract)  and  the  amount  (fifty  dollars)  had  a  right 
to  decide  whether  the  penalty  sued  for  was  legally  recoverable, 
or  in  other  words,  whether  the  statute  U7ider  which  it  was  claimed 
was  lalid  or  void,  and  that,  if  the  statute  be  unconstitutional, 
that  fact  does  nut  show  that  the  magistrate  had  no  jurisdiction 
over  the  suit,  but  would  prove  only  that  his  judgment  was  erron- 
eous. *  *  *  In  this  case  the  magistrate  having  a 
general  jurisdiction  over  demands  ex  contractu  amounting  to  not 
more  than  fifty  dollars,  the  only  question  was,  not,  whether  he 
could  adjudicate  upon  the  warrant,  but  how  he  should  decide — 
and  consequently,  he  had  a  right  to  adjudicate  and,  therefore,  to 
decide  whether  the  statute,  in  virtue  of  which  the  sum  of  fifty 
dollars  was  claimed,  was  binding  or  void.''' 

The  analogy  of  these  cases  with  the  present  is 
patent  :  The  County  Court  had,  under  the  con- 
stitution, general  jurisdiction  of  special  proceedings. 
Power  to  act  in  and  decide  that  class  of  cases,  it 
derived,  not  from  the  statute,  but  from  the  con- 
stitution. When,  therefore,  an  act  relating  to  a 
special  proceeding  was  brought  to  its  attention, 
and  its  judgment  upon  the  steps  taken  under  it 
was  invoked,  it  had  a  right  to  decide  whether 
those  proceedings   were  legal,  that  is,  whether  the 


189 

Act  under  which   its   judgment    was    claimed  was 
valid  or  void,  constitutional  or  unconstitutional. 

The  argument  that  I  have  made  upon  the  ab- 
solute conclusiveness  upon  all  points  of  the  judg- 
ment of  the  County  Court  is,  I  submit,  not  only 
fully  supported  by  the  reasons  adduced  and  the 
authorities  cited,  but  is  the  logical  and  inevitable 
result  of  the  positions  assumed  and  the  conces- 
sions made  by  the  learned  counsel  opposite. 

They  claim  and  assert  under  the  Constitution, 
''that  the  right  of  these  tax-payers  to  notice  and 
a.  hearing  upon  this  assessment,  before  it  became 
final,  extended  to  the  whole  assessment  and  in- 
cluded every  possible  objection  to  it ;"  they  had  "  a 
right  to  be  heard  as  to  the  validity  of  the  statute 
authorizing  the  assessment,  the  authority  of  the 
hoard  to  make  it,  their  fraud,  misconduct,  and 
eri^ors  in  making  it,  the  equality  and  fairness  of  it, 
and  the  justice  and  propriety  of  the  changes  made 
in  it,  after  it  was  reported  so  far  as  it  affected  his 
liability  y 

This  right  to  this  complete  hearing.  I  fully 
admit.  The  constitution  giv(,'s  it  and  the  statute 
does  not  attempt  to,  and  could  not  if  it  did,  take 
it  away.  But,  surely,  it  will  not  be  conKMuled 
that  the  judgment  of  a  Court  of  record.  wh(,'ther 
by  default  or  after  trial,  is  not,  in  all  collaK-r.il  pro- 
ceedings, conclusive  upon  every  ([uestion  on  which 


I90 

the    parties    had  a  right  to  be  heard  before  the 

Court. 

IV. 

The  bonds  issued  under  the  act  are  ne- 
gotiable, AND  HAVE  ALL  THE  QUALITIES  AND 
PRIVILEGES  OF  COMMERCIAL  PAPER,  AND  THE 
INTERVENORS        ARE         BONA         FIDE  HOLDERS 

THEREOF. 

In  discussing;  this  point,  it  will  bs  assumed,  for 
the  purpose  ot  argument,  that  the  bonds  are 
vaHd. 

They  are  bonds  of  the  City  and  County  of  San 
Francisco,  of  $1000  each,  payable  in  twenty  years, 
bearing  interest  at  seven  per  cent,  per  annum. 
(Sec.  9.)  They  are  to  be  disposed  of  to  the  highest 
bidder,  at  not  less  than  ninety-five  cents  on  the 
dollar.  (Sec.  11.)  They  are  to  be  paid,  principal 
and  interest,  by  a  tax  annually  levied  upon  the 
district  declared  by  the  Act  to  be  benefited  by  the 
improvement.      (Sec.  13.) 

The  character  of  these  bonds,  whether  they  are 
negotiable  or  not,  depends,  of  course,  upon  the 
meaning  of  the  Act  under  which  they  were  issued. 
Did  the  Legislature  intend  to  make  these  bonds 
non-negotiable  ?  To  have  done  so,  would  have 
been  to  destroy  or  radically  impair  the  value  of 
the  bonds,  and  to  frustrate  the  objects  which  the 
Act  had  in  view.  That  the  negotiability  of  a  bond, 
carrying  with  it  all   the  intendments,  presumptions^ 


rgr 

and  protections  which  attend  commercial  instru- 
ments, adds  to  its  value  and  salableness,  is  a  prop- 
osition too  obvious  to  need  demonstration.  That. 
at  a  time  when  the  mone>^  markets  of  the  world 
are  replete  with  negotiable,  municipal  bonds,  the 
Legislature  of  this  State  should  have  purposely 
cx)mpelled  the  city  of  San  Francisco  to  enter  these 
markets  as  a  competitor,  with  bonds  clogged  and 
impaired  in  their  value  by  their  non-negotiability, 
is  to  tax  that  body  with  puq^oseless  folly. 

The  very  nature  of  the  bond,  and  the  purposes 
which  it  was  intended  to  subserve  are  in  them- 
selves conclusive  evidence  that  the  Legislature 
intended  to  make  them  negotiable.  Upon  th..i 
subject,  the  language  of  the  Supreme  Court  of 
Mississippi,  dealing  with  a  similar  statute,  will  be 
found  instructive  : 

"  In  construing  an  act  of  the  I>egislatiire,"  says  the  Court, 
*■  w^  must  look  to  its  scheme,  the  object  i>roiX)sed  to  be  accom- 
plished, as  an  aid  to  the  construction  of  any  part  of  it,  so  that 
the  eitire  law  may  bo  made  harnvonio-as  in  all  its  parts,  and  a 
consistent  whole.  Two  objects  are  presented  in  the  fifth  sec- 
tion of  the  am::nded  and  supplemental  charter.  *  *  * 
Second,  that  costly  and  extensive  improvements  might  l>e  made 
of  the  chara<  ter  set  forth  in  the  second  section.  The  scheme  pro- 
posed for  this  accom])lishment  was  the  issuance  of  interest- 
hearing  bonds,  having  a  long  time  to  run.  ♦  ♦  ♦ 
'I'hat  object  would  be  prom(Jted  by  putting  the  lionds  in  sn<-|i 
form  as  that  they  would  be  e^vsily  converted  into  m()nc7.  Th.it 
exigency  could  be  met  by  making  the  bonds  negotiable,  itut 
the  city  objects  to  the  validity  of  the  bonds,  because  the  Ix^gis- 
lature  did  not  confjr  the  power  expressly  to  make  them  negoti- 
able (all  of  them  are  payable  to  bearer).  *  *  ♦ 
The   bonds      ♦          *          *         would    be    worth   more,    and 


192 

would  realize  more  to  the  city  *  *  *  if  they  were 
invested  with  the  privileges  and  immunities  of  commercial  obli- 
gations. *  *  *  One  of  the  distinguishing  features 
in  the  history  of  the  internal  improvements  of  the  last  quarter  of 
a  century,  has  been  the  vast  stimulus  and  assistance  furnished 
by  municipal  bonds.  *  *  *  By  the  same  means 
have  the  cities  been  paved,  sewered,  supplied  with  gas  and  water, 
wharves,  etc.,  to  a  great  degree.  Bonds  thus  issued  bear  inter- 
est, payable  generally  semi-annually,  and  have  a  long  time  to 
run,  and  are  intended  to  be  sold  in  the  money  markets  as  stocks 
and  securities.  They  are  designed  to  be  placed  in  the  money 
centers,  in  or  out  of  the  State,  where  money  is  most  plenty  and 
cheapest.  Where,  therefore,  municipal  bonds,  bearing  annual 
or  semi-annual  interest,  with  long  maturities,  are  authorized  to 
be  issued  for  these,  or  such  purposes,  it  must  be  presumed  that 
the  Legislature  intended  that  they  shall  conform  to  the  known 
usage  ;  that  they  shall  have  that  form  and  those  incidents  neces- 
sary to  their  availability.  It  is  necessary  that  they  should  be  ne- 
gotiable, readily  so;  that  each  purchaser  and  holder  should  ac- 
quire a  legal  title,  divested  of  all  equities  that  might  exist  be- 
tween the  original  parties.  If  they  have  not  the  characteristics 
of  negotiable  instruments  under  the  law  merchant,  they  would 
not  be  readily  salable,  and  would  not  accomplish  the  object  de- 
signed. Whether,  therefore,  the  supplemental  charter  of  the 
city,  or  the  twentieth  section  of  the  act  incorporating  the  V.  F. 
&  S.  I.  R.  R.  Co.,  authorized  in  specific  and  express  terms 
the  bonds  to  be  made  payable  to  bearer  or  not,  the  right  to  put 
them  in  that  form  must  be  itnplied  ifi  the  general  power  con- 
ferred.'''^ 

The  general  rule  that  municipal  bonds  are  com- 
mercial securitie.s  will  be  found  stated  in  : 

1  Dillon  on  Municip.  Corp.  §§  486,  513. 
Jones  on  R.  R.  Securities,  §  284. 

2  Daniel  Neg.  Inst.  §  1500. 

Mercer  County  vs.  Hacket,  i  Wall.  ,83. 
Thompson  vs.  Lee  County,  3  Wall.,  327. 

1  City  of  Vicksburg  OT.  Lombard,  51  Miss.,  122-125. 


193 

Pana  vs.  Bowles,  107  U.  S.,   529. 
Murray  z'S.  Lardner,  2  Wall.,  no. 

But,  it  is  said  that  the  Dupont  Street  bonds  are 
payable  out  of  a  special  fund,  created  by  law  for 
their  payment.  It  will  be  observed  that,  in  the 
great  majority  of  cases,  the  same  statute  which 
creates  the  bond,  creates  also  a  fund  to  be  raised 
by  taxation.  Indeed,  generally,  the  only  way  in 
which  a  municipality  can  meet  its  obligatons  is 
through  taxation.  Suppose  that  the  Legislature, 
here,  instead  of  charo-inir  the  cost  of  wideninir  Du- 
pont  street  upon  a  limited  district,  had  imposed  it 
upon  the  whole  city,  and  had  enacted  that  a  tax 
should  be  annually  levied,  assessed  and  collected 
from  the  whole  city,  sufficient  to  pay  the  interest 
and  a  proportionate  share  of  the  principal  of  the 
bonds,  and  that  the  moneys  so  collected  should  be 
placed  in  a  fund  to  be  called  the  Dupont  Street 
Fund  ;  would  that  destroy  the  negotiability  of  the 
bond  ?  No  one  would  so  contend.  Does  it  mak(; 
any  difference  that  the  tax  is  colhxtcd  from  a  tlis- 
trict  only  of  the  City  ?  Th(;  whol'-of  the  |)r()p('rty 
of  the  district  is  just  as  much  bound  to  ])ay  lh(; 
bonds  as  the  whole  of  the  pro])crty  of  ih('  City 
would  be.  It  is  urged  that  the  whole  properly  ol 
the  district  may  turn  out  to  be  inarlcquate.  .So  it 
may  be  said  that  the  wliolc  properly  ol  ihe  Ciiy 
onay  turn  out  to  be  equally  inad(j(|uate. 


194 

The  reports  are  full  of  cases  where  bonds  have 
been  issued  by  counties  on  behalf  of  unincorpor- 
ated townships,  where  the  property  of  the  town- 
ship alone  was  bound  for  payment,  and  the  money 
was  to  be  raised  by  a  tax  upon  the  township  and 
not  of  the  county  at  large.      It  was  so  held  in  : 

Davenpoi't  vs.  The  County  of  Dodge,  105 
U.  S.,  241. 

Town  of  Queensbury  vs.  Culver,  19  Wall.,  83 

County  of  Cass  vs.  Johnston,  95    U.    S.,   360. 

Jordon  vs.  Cass  Cozinty,  3  Dillon,  185. 

It  has  never  been  doubted  that  these  bonds 
were  just  as  negotiable  as  the  ordinary  county 
bonds. 

The  contention  was  made  on  the  oral  argument 
that  the  bonds  were,  at  the  start,  the  bonds  of  the 
City,  and  continued  to  be  so  until  the  completion 
of  the  work,  when  they  changed  their  nature  and 
became  the  bonds  of  the  district.  It  was  argued 
that  the  completion  of  the  work  was  a  contingency, 
and  that  a  promise  to  pay  which  depends  upon  a 
contingency,  is  not  negotiable.  The  case  was 
likened  to  one  where  a  township  bond  was  to  be 
converted  into  a  county  bond  "  whenever  a  certairv 
injunction  shall  be  finally  dissolved."  [Plffs'.  brief, 
p.  98.]  But  there  is  no  similitude.  Here,  the 
bond  is  from  the  beginning,  and  remains  through- 
out, the  bond  of  the  City.  [Sec.  9.]  The  only 
fund  provided  for  its  payment  at  any  time,  is  the 


195 

tax  to  be  levied  upon  the  district.  [Sec.  13.} 
There  is  no  contingency  whatever  in  the  payment; 
no  conversion  of  one  bond  into  another  at  the  op- 
tion of  the  maker.  In  the  case  cited  by  plaintiff,. 
\AIei'iwether  vs.  Saline  Countyy  3  Dillon,]  the 
Court  said  of  the  instrument  which  they  held  not 
to  be  negotiable  :  "  It  is  not  a  promise  to  pay  ab- 
solutely, but  a  stipulation  for  bonds  thereafter  to 
be  issued." 

V. 
The  bonds  executed  and  issued  bv  the 
board  of  commissioners  being  negotiable, 
the  recital  therein  that  they  are  issued 
in  pursuance  of  the  statute,  is,  in  favor 
of  a  bona  fide  holder,  a  conclusive  ad- 
judication ihat  everything  which  the  act 
required  the  commissioners  to  do  was  done 
bv  them  ;  that  is,  that  all  the  stki's  be- 
tween the  adoi'tion  of  the  rksoluticx  of 
the  board  of  sui'ervisors  and  the  hidg- 
ment  of  the  couniv  court,  were  regular- 
LY   TAKEN. 

Nothing  is  better  settlc;d,  at  the  {jn-scni  day. 
than  that,  whenever  officers  c;xecuting  municipal 
bonds,  have,  under  the  law,  powci'  to  execute  them 
upon  the  hap[jeiiiiig  of  certain  coiitingcucics,  the 
execution  by  iHe  officers  of  bonds,  rcciiiuL;  that 
they  are  issued  under  or  in  accordance  with  th(; 
law,  is,  in  favor  of  a  bona  fide  holder,   a  conclusive 


196 

adjudication  that  the  contingency  has  happened,  if 
the  statute  either  expressly  or  by  proper  construc- 
tion made  those  officers  the  judges  of  the  fact. 

In  discussing  the  question,  I  shall  assume,  for 
the  purposes  of  the  argument,  that  the  following 
contentions  of  the  plaintiff  are  correct  :  First, 
that  there  is  no  powei"  in  the  Board  of  Commis- 
sioners to  do  anything  under  the  Act,  unless  the 
Board  of  Supervisors  first  declare  their  adoption 
of  the  scheme  of  the  Act  under  Sec.  2  i  ;  and  that 
the  Commissioners  cannot,  by  any  act  or  decision 
of  theirs,  supply  the  absence  of  this  declaration  of 
the  Supervisors,  Secondly,  that  the  jurisdiction  of 
the  County  Court  extends  no  further  than  the  re- 
port, and  that  the  Court  does  not  pass  upon  the 
regularity  of  the  proceedings  of  the  Commission- 
ers with  reference  to  giving  notice  to  property- 
owners  and  similar  acts. 

Having  made  these  concessions,  for  the  sake  of 
argument,  the  question  remains:  What,  if  any, 
is  the  legal  effect  of  the  recital  in  the  bond  exe- 
cuted by  the  Commissioners,  that  it  is  issued  under 
the  Statute  ? 

I  shall  seek  to  establish  that  this  recital  is,  in 
favor  of  a  bona  fide  holder,  a  conclusive  adjudica- 
tion of  the  followino"  facts  :  ist.  The  due  orivinsf 
of  the  notice  under  Sec.  6.  2d.  The  due  makinof 
of  the  report  of  damages  and  benefits  provided 
for  in  Sec.  7.      3d.      The   leaving  of    the  report  in 


197 

the  office  of  the  Bonrd  for  thirty  days,  as  provided 
in  Sec.  7.  4th.  The  due  publication  of  twenty 
days'  notice  provided  in  Sec.  7. 

I  contend  that  these  are  all  acts  to  be  performed 
by  the  Board  ;  and,  if,  as  it  is  asserted,  the  County 
Court  has  no  jurisdiction  to  pass  upon  them,  then, 
the  determination  of  their  due  performance  is,  by 
the  Statute  delegated  to  the  Board  ;  and  the  re- 
cital in  the  bond  that  it  is  issued  under  the  law,  is 
an  authoritative  declaration  by  the  Board,  that  all 
these  things  have  been  done  according  to  law,  and" 
is  conclusi^'e  in  favor  of  a  bona  fide  holder  o(  the 
bonds. 

I  understand  this  to  be  the  doctrine  of  Meyer 
vs.  Bj^oivu,  3  W.  C.  R.,  760.  In  that  case,  the 
President  of  the  Board  of  Supervisors,  the  Clerk 
of  the  Board  and  the  Treasurer,  were  authorized 
to  issue  bonds  to  fund  all  leoal  claims  against  the 
City  of  Sacramento.  The  Act  did  not,  in  terms, 
appoint  anyone  to  determine  what  were  legal 
claims  against  the  City. 

The  Court  said  : 

"True,  the  Act  of  1858  (Slats.  1858,  p.  280)  [iruvidcd  that 
all  *  legal '  claims  might  he  funded  ;  but,  as  wc  understand  the 
provisions  of  that  Act,  the  President  of  the  Hoard  of  Supervisors, 
the  Clerk  of  the  Board,  and  the  'I'reasurer,  were  authorized  to 
determine,  on  behalf  of  the  City  and  County  of  Sacramento,  the 
legality  of  each  claim  presented,  and,  if  satisfied  of  its  legality, 
to  issue  a  bond    or    bonds  therefor.  #         *         #         -flie 

bonds  recite  that  they  were  issued  in  accordance  with  the  law  of 
1858  ;  they,  and  the  coupons  attached,   arc  signed  and  authen- 


1 98 

ti'cated  as  required  by  the  law.  They  are  exactly  such  bonds  as 
would  have  been  authorized,  had  the  officers  of  the  city  and 
county  indisputably  allowed  only  '  legal  debts  and  liabilities  '  of 
the  former  corporation,  the  City  of  Sacramento.  At  the  trial, 
the  bona  fides  of  the  plaintiff  being  conceded,  there  was  but  one 
question  to  be  decided,  to  wit :  Were  the  bonds  such  as  the 
city  and  county  had  power  to  issue  ?  No  question  of  irregularity, 
or  even  fraud,  on  the  part  of  the  agents  of  the  municipality, 
could  be  considered.  Roneden  vs.  Jersey  Cii}\  17  Rep.,  253; 
East  Lmcobi  vs.  Davenport^  94  U.  S.,  801  ;  Po)7ipton  vs.  Cooper 
Union,  10 1  ib.,  196;  Sherman  vs.  Simmons,  109  ib.,  757; 
Louisiafia  vs.  Filsbury,  105  ib.,  278." 

This  decision  is  of  the  utmost  importance,  as  it 
estabhshes  all  I  claim  in  this  branch  of  my  argu- 
ment. It  decides  that:  Jii'st,  where  a  Statute 
authorizes  officers  to  issue  bonds  upon  the  happen- 
ing of  a  contingency,  e.  g.,  the  existence  and  pres- 
entation to  them  of  a  letral  claim  aQfainst  a  munici- 
pality,  and  the  statute  does  not,  in  terms,  appoint 
a  tribunal  to  determine  the  fact  of  the  existence  or 
presentation  of  the  claim,  the  officers  charged  with 
the  duty  of  issuing  the  bonds,  are,  themselves, 
made  by  the  law  the  judges  of  the  question  ;  sec- 
ondly, the  recital  in  the  bond  executed  by  these 
officers,  that  it  is  issued  in  accordance  with  the 
law,  is  an  adjudication  by  these  officers  of  the  ex- 
istence of  the  fact  submitted  to  their  determination; 
thirdly,  in  favor  of  a  bona  fide  holder  of  the  bond, 
the  adjudication,  evidenced  by  that  recital,  is  con- 
clusive. 

If  we  apply  these  principles   to   the  case  at  bar. 


199 

they  will  afford  a  ready  answer  to  the  question  of 
the  effect  of  the  recital  in  the  bonds. 

Grant  that  the  giving  of  the  notices  and  the 
making  of  the  report,  provided  in  Sees.  6  and  7, 
are  conditions  precedent  to  the  right  of  the  Board 
to  issue  bonds  ;  still,  who  is  to  determine  whether 
these  things  have  been  done  ?  It  is  said  that  the 
County  Court  has  nothing  to  do  with  the  matter. 
If  this  be  conceded,  then,  the  Commissioners 
must  determine  them — else  they  must  remain 
forever  open. 

I  propose  to  examine  this  subject,  and  state 
various  propositions  which  I  understand,  control  it. 

I,  Whenever  power  is  granted  to  a  nninicipal- 
ity  or  its  agents  to  issue  bonds  upon  the  happen- 
ing of  a  certain  contingency,  if  authority  to  de- 
termine the  question  of  the  existence  of  the  contin- 
gency, be  expressly  or  impliedly  conferred  upon  the 
municipality  or  its  agents,  their  dete^'mination  and 
decision  of  the  fact  is  final;  and,  as  between  a  bona 
fide  holder  of  the  bonds  and  the  obligor,  all  further 
agitation  of  the  question  is  forever  foreclosed. 

I  might  content  myself  with  a  rclerence  to  the 
repeated  adjudications  which  have  established 
the  rule.  It  may  b(^  wvW,  however,  to  discuss  it 
in  its  origin  and  developmcnl. 

To  hold  that  the  existence  of  the  comlilions 
was  a  question    forever  op;,-n,  would    leail  to  most 


aoo 

inconvenient  results,  would  destroy  the  value  of 
the  bonds,  and  breed  disaster,  as  well  to  the  ob- 
ligor as  the  obligee. 

Grant  that,  in    the    present    case,   for    instance, 
publication  of  notices   under   Sections  6  and  7  is  a 
condition     precedent     to     the     issuance     of   the 
bonds.      Still,  Is  the    question,  whether   or  not  the 
notices  were  published,  to  remain  open,  as  a  ques- 
tion of  fact,  until  the  last  bond    and  coupon  shall 
have  been  paid?     The   bonds   have   twenty  years 
to  run.      May    the     obligor,   at    any    time    within 
those  twenty  years,  compel  each    individual  bond- 
holder to  litigate  with  it  the   question  of  due  pub- 
lication ?  Whether  the  publication  was  for  the  re- 
quisite length  of  time  ?     Whether  the  papers  were 
selected  by  the  Board  ?  Whether  the  notices  were 
published  In    the  body  of  the  paper  instead  of  the 
supplement?   May  these  questions  be  raised  twenty 
years  hence,  when  witnesses  are  dead,  papers  lost, 
records  destroyed  ?     A   doctrine  leading    to  such 
results  is  so  disastrous— so  destructive  of  the  true 
value  of  the  bond,  and  of  the    objects   which  It  is 
intended  to   subserve — that   It    would   be  amazing 
to   find    it    approved    by    any    system  of  rational 
jurisprudence. 

Grant  that  it  Is  important  that  the  conditions 
precedent  to  the  issue  of  the  bonds  should  be 
observed — that  the  facts  should  exist;  still,  as  the 
determination  of  the  existence  of  those  facts  must, 


20I 

at  some  time,  be  established  by  the  judgment  of 
some  humcin  tribunal,  wisdom  and  sound  policy 
certainly  dictate  that  the  determination  should  pre- 
cede, and  not  follow,  the  issuance  of  the  bonds. 

Speaking  upon  this  subject,  the  Supreme  Court 
of  the  United  States  has  said  : 

"It  is  very  obvious  that,  if  the  act  of  the  Legislature  which 
authorized  an  issuance  of  bonds  in  aid  of  the  construction  of  the 
railroad,  on  the  wTitten  assent  of  two-thirds  of  the  resident  tax- 
payers of  the  town,  intended  that  the  holder  of  the  bonds  should 
be  under  obHgation  to  j)rove,  by  parol  evidence,  that  each  of  th-i 
two  hundred  and  fifty-nine  names,  signed  to  the  written  assent, 
was  a  genuine  signature  of  the  person  who  bore  the  name,  the 
proffered  aid  to  the  railroad  company  was  a  delusion.  No  sane 
person  would  have  bought  a  bond,  with  such  an  obligation  rest- 
ing upon  him,  whenever  he  called  for  payment  of  principal  or 
interest.  If  such  was  the  duty  of  the  holder,  it  was  always  his 
duty.  It  could  not  be  performed  once  for  all.  The  bonds,  re- 
tained in  the  hands  of  the  company,  would  have  been  no  help 
in  the  construction  of  the  road.  It  was  only  because  they  could 
be  .sold,  that  they  were  valuable.  Only  thus  could  they  be  ap- 
plied to  the  constructioa  Yet,  it  is  not  to  be  doubted  that  the 
Legislature  had  in  view,  and  intended  to  give,  substantial  aid  to 
the  railroad  company,  if  a  sufficient  number  of  taxpayers  as- 
sented. They  must  have  contemjjlated  that  the  bonds  would 
be  offered  for  sale,  and  it  is  not  to  be  believed  that  they  intcntled 
to  impose  such  a  clog  upon  their  salableness,  as  would  rest  upon 
it,  if  every  jjerson  proj^osing  to  purchase  was  rc<iuired  to  intjuire 
ofeach  one  whose  name  appeared  to  the  assent,  whether  he  had, 
in  fact,  signed  it." 

Town  of    Venice  vs.  MuriiocJ<:,C)2     U.    S., 
497.  49S. 

"Conceding  as  we  do,  that  the  authority  to  make  the  sulv 
scription  was,  by  the  eleventh  section  of  the  act,  made  depend- 
.ent  upon  the  result  of  the  submission  of  the  (jueslion,   whether 


202 

the  town  would  subscribe  to  a  popular  vote  of  the  township, 
and  upon  the  approval  of  the  subscription  by  a  majority  of  the 
legal  voters  of  the  town  voting  at  the  election,  a  preliminary  in- 
quiry must  be  :  How  is  it  to  be  ascertained  whether  the  direc- 
tions have  been  followed,  whether  there  has  been  any  popular 
vote,  or  whether  a  majority  of  the  legal  voters  present  at  the 
election  did,  in  fact,  vote  in  favor  of  a  subscription  ?  Is  the 
ascertainment  of  these  things  to  be  before  the  subscription  is 
made,  and  before  the  bonds,  are  issued  ;  or  must  it  be  after  the 
bonds  have  been  sold,  and  be  renewed  every  time  a  claim  is 
made  for  the  payment  of  a  bond  or  a  coupon  ?  The  latter  ap- 
pears to  us  inconsistent  with  any  reasonable  construction  of  the 
Statute.  Its  avowed  purpose  was  to  aid  the  building  of  the 
railroad  by  placing  in  the  hands  of  the  railroad  company  the 
bonds  of  assenting  municipalities.  These  bonds  were  intended 
for  sale  ;  and  it  was  rationally  to  be  expected  that  they  would 
be  put  upon  distant  markets.  It  must  have  been  considered 
that,  the  higher  the  price  obtained  for  them,  the  more  advan- 
tageous would  it  be  for  the  company,  and  for  the  cities  and 
towns  which  gave  the  bonds  in  exchange  for  capital  stock. 
Everything  that  tended  to  depress  the  market  value  was  averse 
to  the  object  the  Legislature  had  in  view.  It  could  not  have 
been  overlooked  that  their  market  value  would  be  disastrously 
affected,  if  the  distant  purchasers  were  under  obligation  to  in- 
quire before  their  purchase,  or  whenever  they  demanded  pay- 
ment of  principal  or  interest,  whether  certain  contingencies  of 
facts  happened  before  the  bonds  were  issued — contingencies, 
the  happening  of  which  it  would  be  almost  impossible  for  them, 
in  many  cases,  to  ascertain  with  certainty.  Imposing  such  an 
obligation  upon  the  purchaser  would  tend  to  defeat  the  primary 
purpose  the  Legislature  had  in  view ;  namely,  aid  in  the  con- 
struction of  the  road.  Such  an  interpretation  ought  not  to  be 
given  to  the  Statute,  if  it  can  reasonably  be  avoided;  and  we 
think  it  maybe  avoided." 

Town  of  Colouia,    vs,  Eaves,  92    U.  S.,   487— 
488. 


203 

See  further  to  the  same  effect  : 

Bissell  vs.    City    of  Jcffersonville,   24    How. 
287. 

Knox  vs.  Aspimxjall,  21  How.,  539. 

People  N?^.  Hagar,  52  Cal.,  i  71-183, 
Therefore  Is  it,  that  Courts  have  avoided  g-iv- 
\\-\<g  Statutes  such  an  uureasonable  construction  as 
that  insisted  upon  by  the  plaintiff  here,  and  have 
always  sought  to  read  them  so  as  to  find  in  them 
the  creation  of  a  tribunal  vested  with  authority  to 
decide,  befare  the  issuance  of  the  bonds,  upon  the 
existence  of  the  conditions  precedent,  and  whose 
adjudication,  upon  that  point,  should  be  final  and 
conclusive  upon  all  parties.  Hence,  the  doctrine 
is  firmly  established,  that  : 

2.  If  power  is  given  to  a  Court,  Board  or  officer 
to  issue  bonds,  -ajhen  a  certain  roent  has  happened, 
or,  upon  the  performance  oj  certain  conditions,  and 
the  Statute  does  not,  in  terms,  appoint  a  tritfunal  to 
adjudicate  the  happening  of  t/ie  event  or  the  condi- 
tions, it  lifill  be  infen^ed  that  power  to  make  such 
an  adjudication  is  vested  in  the  Court,  Hoard  or 
officer. 

In  Town  of  Coloma  vs.  luives.  92  IL  .S.,  484, 
the  munici[)al  officers  wen;  not  to  act  until  tiie  as- 
sent (jl  a  majority  ol  the  voKts  had  bcin  obiaiiifd. 

The  SuiH-cm(t  Court  ol    ihc   I'nitcd  Stales  s;ii(l  : 

"At  some  time  or  other,  it  is  to  Ijc  ascertained  whether  the 
directions  of  the  Af  t   have  heen  followed  ;  whether    there   wns 


204 

any  popular  vote  ;  or  whether  a  majority  of  the  legal  voters 
present  at  the  election  did,  in  fact,  vote  in  favor  of  the  subscrip- 
tion. 'The  duty  of  ascertaining  was  plainly  intended  to  be 
vested  somewhere,  and  once  for  all ;  and  the  only  persons  spoken 
of,  who  have  any  duties  to  perform  respecting  the  election,  and 
action  consequent  upon  it,  are  the  Town  Clerk  and  the  Super 
visor  or  other  executive  ofificer  of  the  city  or  town.  It  is  a  fair 
presumption,  therefore,  that  the  Legislature  intended  that  those 
officers,  or  one  of  them  at  least,  should  determine  whether  the 
requirements  of  the  Act,  prior  to  a  subscription  to  the  stock  of 
a  railroad  company,  had  been  met. 

"  If,  therefore,  there  cQuld  be  any  obligation  resting  on  per- 
sons proposing  to  purchase  the  bonds  purporting  to  be  issued 
under  such  legislative  authority,  and,  in  accordance  with  a  pop- 
ular vote,  to  inquire  whether  the  provisions  of  the  statute  had 
been  followed,  or  whether  the  conditions  precedent  to  their  law- 
ful issue  had  been  complied  with,  the  inquiry  must  be  addressed 
to  the  Town  Clerk,  or  executive  officer  of  the  municipality, — to 
the  very  person  whose  duty  it  was  to  ascertain  and  decide  what 
were  the  facts.  The  more  the  statute  is  examined,  the  more 
evident  d^es  this  become.  The  eleventh  section  (quoted  above) 
declared,  that  if  it  should  appear  that  a  majority  of  the  legal 
voters  of  the  city,  town  or  township,  voting,  had  voted  'for  sub- 
scription,' the  executive  officer  and  Clerk  should  subscribe  and 
execute  bonds.  '  If  it  should  appear,'  said  the  Act.  Appear 
when  ?  Why,  plainly,  before  the  subscription  was  made  and  the 
bonds  were  executed  ;  not  afterwards.  Appear  to  whom  ?  In 
regard  to  this,  there  can  be  no  doubt.  Manifestly,  not  to  a 
Court,  after  the  bonds  have  been  put  on  the  market  and  sold, 
and  when  payment  is  called  for ;  but,  if  it  shall  appear  to  the 
persons  whose  province  it  was  made  to  ascertain  what  had  been 
done  preparatory  to  their  own  action,  and  whose  duty  it  was  to 
issue  the  bonds,  if  the  vote  appeared  to  them  to  justify  such 
action  under  the  law.  These  persons  were  the  Supervisor  and 
Town  Clerk.  Their  right  to  issue  the  bonds  was  made  depend- 
ent upon  the  appearance  to  them  of  the  performance  of  the 
conditions  precedent.  It  certainly  devolved  upon  some  person 
or  persons  to  decide  this  preliminary  (juestion ;  and  there  can 
be  no  doubt  who  was  intended  by  the  law  to  be  the  arbiter.     In 


205 

Commissioners  vs.  Nichols,  14  Ohio  St.,  260,  it  was  said  that  'a 
statute,  in  ]}roviding  that  county  bonds  should  not  be  delivered 
by  the  Commissioners  Ufitila.  sufficient  sum  had  been  provided 
by  stock  subscriptions,  or  otherwise,  to  complete  a  certain  rail- 
road, and  imposing  upon  them  the  duty  of  delivering  the  bonds 
when  such  provision  had  been  made,  without  indicating  any 
person  or  tribunal  to  determine  that  fact,  fiecessarily  delegates 
that  power  to  the  Commissioners ;  and,  if  delivered  improvi- 
dently,  the  bonds  were  not  to  be  invalidated." 

To  the  same  effect  are  the  following  cases  : 

Bissell  vs.    City  of  Jeffei^sonvillc,    24   How., 

287. 

Knox  vi.  Aspiniuall,  21   How.,  539. 

Humboldt  Toivnship  vs.  Long,  92  U.  S.,  642. 

Marcy   vs.    TownsJiip  of  Oswego,   92    U.    S., 

637. 
County  of  Moultrie  vs.  Savings  Bank,  92  U. 

S.,  631. 
Tozon  of  Venice  vs.  Murdock,  92  U.  S.,  494. 
^V.  Joseph    Toiunship   vs.   Rodgcrs,  16  Wall.. 

644. 
Lewis  vs.  Conunissiouers,  105  U.  S.,  739. 
County  of  Clay  vs.   Society  for  Savings,   1 04 

IJ.  S..  579. 
Conunissiouers  vs.  January,  94  U.  S.,  202. 
Commissioners  vs.  Bolles,  94  I).  S.,  104. 
Lynde  vs.   The  County,  lO  Wall.,  0. 
Grand  Chute  v-,.   J  Vinegar,  15  Wall.,  355- 
Learned  \'<,.  Ihtrlington,  4  Wall.,  275. 

Therefore,  il  has  been  furlhc-r  eslablished  thai  : 


206 

3.  Whenever  the  pi'oper  Court,  Board  or  officer, 
upon  whom  the  statute  expressly  or  by  implication 
casts  the  ditty  of  deciding  the  existence  of  the  con- 
ditions precedent,  has  decided,  and  has,  in  some 
authentic  manner,  promulgated  its  decision,  that 
adjudication  is  conclusive  in  favor  of  a  bona  fide 
holder  of  the  bonds.  Hence,  when  the  officers,  who 
are  to  pass  upon  the  question,  are  also  the  officers 
who  are  to  execute  the  bonds,  if  the  bonds  so  exe- 
cuted bear,  upon  their  face,  a  recital  of  the  existence 
of  the  conditions,  this  is  a  declaration  of  the  deci- 
sion by  the  proper  officers,  and  is  conclusive  in  favor 
of  a  BONA  FIDE  holder  for  value. 

Says  the   Supreme  Court  of  the  United  States 

in  a  case  already  cited  : 

"  In  the  present  case,  the  person  or  persons  whose  duty  it  was 
to  determine  whether  the  statutory  requisites  to  a  subscription 
and  to  an  authorized  issue  of  the  bonds  had  been  performed, 
were  those  whose  duty  it  was  also  to  issue  the  bonds  in  the  event 
of  such  performance.  The  statute  required  the  Supervisor,  or 
other  executive  officer,  not  only  to  subscribe  for  the  stock,  but 
also,  in  conjunction  with  the  Clerk,  to  execute  bonds  to  the  rail- 
road company  in  the  name  of  the  town  for  the  amount  of  the 
subscription.  The  bonds  were  required  to  be  signed  by  the 
Supervisor  or  other  executive  officer,  and  to  be  attested  by  the 
Clerk.  They  were  so  executed.  1  he  Supervisor  and  the  Clerk 
so  signed  them^  and  they  were  registered  in  the  office  of  the 
Auditor  of  the  State,  in  accordance  with  an  Act  requiring  that, 
precedent  to  their  registration,  the  Supervisor  must  certify  under 
oath  to  the  Auditor  that  all  preliminary  conditions  to  their  issue 
retjuired  by  the  law  had  been  complied  with.  On  each  bond 
the  Auditor  certified  the  registry.  It  was  only  after  this  that 
they  were  issued.     And  the  bonds  themselves  recite  that  they 


207 

'  are  issued  under  and  by  virtue  of  the  Act  incorporating  the 
railroad  company,'  approved  March  24,  1869,  '  and  in  accord- 
ance with  the  vote  of  the  electors  of  said  Township  of  Coloma, 
at  a  regular  election  held  July  28,  1869,  in  accordance  with  said 
law.'  After  all  this,  it  is  not  an  open  question  as  between  a. /wna 
fide  holder  of  the  bonds  and  the  Township,  whether  all  the  pre- 
^equsites  to  their  issue  had  been  complied  with.  Apart  from 
and  beyond  the  reasonable  presumption  that  the  officers  of  the 
law,  the  Township  officers,  discharged  their  duty,  the  matter  has 
passed  into  judgment.  The  persons  appointed  to  decide  whether 
the  necessary  prerequisites  to  their  issue  had  been  completed 
have  decided,  and  certified  ihcir  decision.  They  have  declared 
the  contingency  to  have  happened,  on  the  occurrence  of  which 
the  authority  to  issue  the  bonds  was  complete.  Their  recitals 
are  such  a  decision  ;  and  beyond  those  a  bona  fide  purchaser  is 
not  bound  to  look  for  evidence  of  the  existence  of  things  in  pais. 
He  is  bound  to  know  the  law  conferring  upon  the  municipality 
power  to  give  the  bonds  on  the  happening  of  a  contingency  ;  but, 
whether  that  has  happened  or  not  is  a  question  of  fact,  the  de- 
cision of  which  is  by  law  confided  to  others— to  those  most  com- 
petent to  decide  it — and  which  the  purchaser  is,  in  general,  in 
no  condition  to  decide  for  himself  This  we  understand  to  be 
the  settled  doctrine  of  the  Court." 

"Where  legislative  authority  has  been  given  to  a  municipality, 
or  to  its  officers,  to  subscribe  for  the  stock  of  a  railroad  com- 
pany, and  to  issue  municipal  bonds  in  payment,  but  only  on 
some  precedent  condition,  such  as  a  popular  vote  favoring  the 
subscription,  and  where  it  may  be  gathered  from  the  legislative 
enactment  that  the  officers  of  the  municipality  were  invested  with 
power  to  decide  whether  the  condition  precedent  has  been  com- 
plied with,  their  recital  that  it  has  been,  made  in  the  bonds  issued 
by  them  and  held  by  a  bona  fide  purchaser,  is  conclusive  of  the 
fact,  and  binding  upon  the  municipality  ;  for,  the  recital  is  it.self 
a  decision  of  the  fact  by  the  appointed  tribunal. 

Toum  flj  Coloma  vs.  Ea^es,  92  U.  S.,  489  90. 

Furthermore:     It   is   not   nrce.ssary  that  tlic  re- 
cital  of  the   bonds  should,    in   express    terms,  .set 


2C8 

forth  the  existence  of  the  facts,  whose  existence  is 
made  a  concUtion  precedent  to  the  issuance  of  the 
bonds.  It  is  sufficient,  if  it  does  so  by  necessary 
imphcation.  Hence,  it  is  the  estabHshed  doctrine 
that  : 

4.  If  the  bond  is  executed  by  the  officers  upon 
whojii  the  duty  of  deterniimng  the  peiformance  of 
conditions  precedent  is  cast,  and  it  bears  upon  its  face 
the  recital  that  it  is  issued  in  conformity  zvith  the 
law,  such  a  recital  is  an  adjudication  by  the  proper 
authority  that  the  conditions  made  by  laza  precedent 
to  the  issuance  of  the  bond  existed. 

This  rule  will  be  found  in  the  following  familiar 
cases : 

School  District  vs.  Stone,  106  U.  S.,  187. 

Coni7nissioners  vs.  Bolles,  94  U.  S.,  lo.j.. 

County  of  Clay  vs.  Society  for   Savings,  104 
U.  S.,  579. 

Bonhaui  vs.  Needles,  103  U.  S.,  648. 

Buchanan  vs.  Litchfield,  102  U.  S.,  278. 

Pompton  vs.  Cooper s   Union,  loi   U.  S.,  196. 

Orleans  vs.  Piatt,  99  U.  S.,  676. 

Humboldt  Township  vs.  Long,  92  U.  S.,  642. 

Pana  vs.  Bowler,  107  U.  S.,  529. 

Montclair  vs.  Ramsdell,  Id.,  147. 

This  doctrine  had  its  origin  twenty-five  years 
ago,  in  the  celebrated  case  of  Knox  County  vs. 
Aspinwall,    21     How.,   and   has  steadily  been  ad- 


209 

liered  to  in  an  unbroken  line  of  decisions,  extend- 
ing from  that  time  down  to  the  last  volumes  of  the 
United  States  Reports  : — Sherman  County  vs. 
Si7nmons,  109  U.  S,  735,  and  Dixon  County  vs. 
Field,  III    U.  S.,  83. 

If  we  apply  these  principles  to  the  case  in  hand, 
the  result  cannot  be  doubtful.      The  result  is  : 

5.  TJie  Board  of  Dupont  Street  Coimnissioners, 
-being  charged  by  the  Act  ivith  the  duty  of  acting 
and  issuing  bonds,  upon  the  happening  of  certain 
conditions,  viz  ;  the  giving  of  certain  notices,  the 
making  of  a  certain  report^  and  the  leaving  that 
report  for  a  certain  length  of  tijne  open  for  inspec- 
tion at  a  given  place  ;  and  no  other  tribunal  being 
constittited  to  pass  upon  these  questions,  the  board 
itself  is  clothed  zuith  autJiority  to  decide  thcni. 
The  recital  in  the  bonds  executed  by  the  board  that 
tliey  are  issued  in  conformity  ivitJic  Act,  is  a  deci- 
sion. In  favor  of  a  bona  fide  holder  of  the  bonds, 
that  decision  is  final  and  conclusive. 

The  Board  of  I  )upont  Street  Commissioners  is 
created  by  statute,  and  is  vested  by  the  statute 
with  authority  to  issue  bonds.  The  board  is  to 
act  upon  the  happenino^  of  certain  events— the 
giving  of  certain  notices,  making  a  certain  reiport, 
affording  certain  opportunities  for  insixiction. 

Grant  that  tJK;  exist(;nc('  of  all  th<'se  things,  in 
the  terms  prescribed  by  law,    is  a  condition    prece- 


2IO 

dent.  Still  I  ask  :  Is  the  question  whether  the 
notices  have  been  given,  whether  the  report  has 
been  made,  whether  the  requisite  opportunity  for 
examination  has  been  afforded,  to  be  decided  be- 
fore the  issue  of  the  bonds,  or  is  it  to  remain  open 
forever  thereafter  ?  In  the  light  of  the  foregoing 
discussion,  it  cannot  be  doubted  that  it  is  to  be 
decided  before  the  bonds  issue. 

But  by  whom  }  If  the  County  Court  has  no 
power  over  the  question,  then,  the  statute  does 
not,  in  express  terms,  point  out  the  tribunal.  The 
board  are  to  act  whenever  these  things  have  hap- 
pened. They,  therefore,  no  one  else  being  au- 
thorized to  take  action  in  the  matter,  must  deter- 
mine whether  they  have  happened  or  not. 

The  decision  by  the  board  upon  this  point  is 
necessarily  final  in  favor  of  a  bona  fide  holder  of 
the  bonds.  The  recital  in  the  bond  here,  that  it 
is  issued  under  the  provisions  of  the  Act,-  is  an 
adjudication  and  declara':ion  that  this  condition 
precedent,  which  it  was  in  the  power  of  the  board 
to  determine,  existed.  Behind  that  recital,  as  re- 
gards a  bona  fide  holder,  the  obligor  of  the  bond 
cannot  go  ;  and  the  obligee  is  not  bound  to  go. 

'*  The  bonds  recite  that  they  were  issued  under,  and  in  pur- 
suant to,  the  orders  of  the  Board  of  Supervisors  of  Clay  County, 
as  authorized  by  virtue  of  the  laws  of  the  State  of  IlUnois.  The 
Act  of  November  6,  1849,  authorized  the  Judges  of  the  County 
Court  to  issue  the  bonds,  only  in  case  a  majority  of  the  voters 
of  the  county,  taking  as  a  standard  the  number  of  votes  thrown 


2  I  I 

at  the  next  preceding  general  election,  should  vote  in  favor  of 
the  proposition  to  subscribe  to  the  stock  of  some  designated  rail- 
road company,  and  pay  for  it  by  the  issue  of  county  bonds 
The  ultimate  decision  of  the  question  whether  such  a  vote  had 
been  cast  was,  therefore,  left  with  the  Judges  of  the  County 
Court.  The  recital  of  the  bonds,  that  they  were  issued  pursuant 
to  the  orders  of  the  Board,  the  successor  of  the  County  Court, 
as  authorized  by  virtue  of  the  laws  of  the  State  of  Illinois,  is 
equivalent  to  a  declaration  by  the  Board,  upon  the  face  of  the 
bond,  that  the  election  had  been  held,  and  had  resulted  so  as  to  ■ 
authorize  the  lawful  issuing  of  the  bonds.  When  the  l^onds  are 
in  the  hands  of  a  bona  fide  holder,  this  recital  is  conclusive  and 
binding  upon  the  municipality. 

"  The  recital  that  they  were  issued  in  conformity  with  the 
laws  of  the  State,  as  already  shown,  is  binding  on  the  county 
when  suit  is  brought  on  the  bonds  by  a  bona  fide  holder,  and 
concludes  the  county  from  setting  up  any  irregularities  in  their 
issue,  if  any  existed." 

County  of  Clay  vs.  Society  for  Savitigs,    104 

U.  S.,    579,  5^3-6-9- 

See  also  the  following  cases  : 

Walnut  vs.   Wade,  103  U.S.,  683. 
Bonkain  vs.  Needles,  103  U.  S.,  648. 
Hackett  vs.  Oltaiva,  99  U.  S.,  86. 
County  of  Macon  vs.  Shores,  97  U.  .S.,  272. 
County  of  Warner  vs.  Marcy,  97   L^  S.,  96. 
San  Antonio  vs.  Meliaffy,  96  U.  .S.,  312. 
Commissioners  vs.  Bollcs,  94  V.  .S.,   104. 
Chambers  County  vs.  Clews,  21   Wall.,  317. 
Learned  v:^.  Burlini^ton,  4  Wall.,  2~^. 
I'^an  Ifoslrnp  vs.  Madison  City,   1  Wall.,  291. 
Mercer  County  vs.  Hackett,   \   Wall.,  '^i. 


212 

Moi^ait  vs.  Commissioners  of  Miami,  2  Black., 

722. 
■Amey  vs.  Mayor,  24  How,,  364. 
Shei'man  County  vs.  Simons,    109  U.  S,,  735. 

To  resume,  and  restate  the  proposition  gener- 
ally in  this  case  : 

6.  The  plaintiff  being  the  holder  in  good  faith, 
for  value  and  before  maturity,  of  a  nninicipal  bond, 

issued  by  officers,  empowered  to  issue  it  upon  the 
existence  of  certain  conditions  precedent,  and  the 
bond  containing  a  recital  that  it  is  issued  under  the 
provisions  of  the  act  authorizing  it,  the  existence  of 
the  conditions  is,  as  to  the  plaintiff,  conclusively  es- 
tablished by  the  recital. 

The  defendant  relies  upon  the  late  case  of 
Dixon  County  vs.  Field,  11 1  U.  S.,  83,  to  sustain 
a  contrary  doctrine  ;   but — 

7.  The  decision  in  Dixon  Coimty  vs.  Field,  far 
from  overthrowing,  confirms  and  ilhtstrates  all  the 
principles  zuhich  I  have  hereinabove  maintained. 

In  that  case,  the  county  had  "  no  legislative  au- 
thority to  create  a  debt  in  excess  of  ten  per  cent, 
upon  the  assessment."  (p.  90.)  It  issued  $87,- 
000  of  bonds,  each  one  of  which,  upon  its  face,  re- 
cited that  it  was  "  one  of  a  series  of  eighty-seven 
thousand  dollars,  issued  *  '"'  '"  under  and 
by  virtue  of"  the  Statute  and  Constitution  of  the 
State.      The    amount  of   the    bonds  exceeded  ten 


213 

per  cent,  of  the  assessment,  which,  as  "  7C'as  s/iozv?i 
and  appeared  from  tJie  books  of  public  record  of 
said  county,  was  $587,331,  and  no  more."     (p.  86.) 

The  question  which  arose  was  :  Does  the  re- 
cital in  the  bond,  that  it  is  issued  "  under  and  by 
virtue  of"  the  law,  constitute  a  conclusive  adjudica- 
tion against  the  county,  "that  everything"  necessary, 
by  law,  to  be  done  has  been  done,  and  every  fact 
necessary,  by  law,  to  have  existed,  did  exist,  to 
make  the  bonds  lawful  and  binding  ?  "     (p.  92.) 

The  decision  establishes  the  following  propo- 
sitions : 

(a.)     A  general  recital  in  the  bond,  t/i.it  it  has 
been  issued  in  conformity  with  the  law,  is  as  effica- 
cious as  a  specific  enumeration  of  the  existence    of 
each  particular  fact  essential  to  the  validity  of  the 
bond. 

"  It  is  not  necessary,"  says  the  Court,  "  that  the  recital  should 
enumerate  each  particular  fact  essential  to  the  existence  ot  the 
obligation.  A  general  statement  that  the  bonds  have  been  is- 
sued in  conformity  with  the  law  will  suffice.  #  *  # 
A  determination  and  statement  as  to  the  whole  series,  where 
more  than  one  is  involved,  is  a  determination  and  certificate  as 
to  each  essential  particular."'     [pp.92  93.J 

{b.)  The  recital,  whether  general  or  specific,  is 
determinative  and  conclusive  of  those  kaci s,  only, 
which  the  officers  executing  the  bond  had  authority 
to  inquire  into  and  determine. 

"There  must  be  authority  vested  in  the  olVu  crs  by  law.  as  to 
each  necessary  fact,  whether  enumerated  or  non-enumerated, 
to  ascertain  and  determine  the   existence,  and   to  guarantee  to 


214 

those  dealing  with  them  the   truth   and  conclu-;iveness  of  their 
admissions"  (p.  93.) 

(c.)  The  vital  question,  then  in  each  case,  is 
"  whether  in  the  particidar  case  under  considera- 
tion, a  fair  construction  of  the  laiv  authorized  the 
officers  issuing  the  bonds  to  ascertain,  determine, 
and  certify  the  existence  of  the  facts  upoit  which 
their poiuer,  by  the  terms  of  the  law,  luas  made  to 
depend!'  {p.  gjf.) 

{d.)  The  authority  thus  to  decide  ivill  not  be  held 
to  exist,  first :  ivhere  the  statute  grants  '' a  power  to 
issue  bonds,  upon  the  existence  of  a  state  of  facts  to 
be  ascertained  and  determined  by  some  persons  or 
tribunal  other  than  those  authorized  to  issue  the 
bonds''  {y^.  93);  secondly,  where  '' the  fact  neces- 
sary to  the  existence  of  the  authority  was  by  law  to 
be  ascertained,  not  officially  by  the  officers  charged 
with  the  execution  of  the  pozver,  but  by  refe7^ence  to 
some  EXPRESS  and  definate  record  of  a  public 

CHARACTER."    {p.   93.) 

{e)  The  authority  thus  to  decide  the  question 
of  fact  will  be  held  to  exist  in  the  officers  executing 
the  bonds,  whenever  the  ri^ht  to  issue  them  depends 
upan  the  existence  of  a  state  of  facts,  which  can  be 
ascertained  only  by  an  investigation  and  examina- 
tion IN  PAIS  and  no  other  tribunal  than  the  officers 
issuing  the  bonds  has  been  appointed  by  the  statute 
to  77iake  the  decision. 


215 

This  rule  is  clearly  established  by  Many  vs. 
Township  of  Oszuego,  92  U.  S.,  637,  cited  with  ap- 
proval, and  confirmed,  in  Dixon  vs.  Field.  In 
that  case,  the  County  Commissioners  were,  be- 
fore issuing  the  bonds,  to  order  an  election. 

"The  Board  was  to  order  the  election  it' certain  facts  existed, 
and  only  then.  It  was  required  to  act,  if  fifty  freeholders^  who 
were  voters  of  the  township,  petition :d  for  the  election  ;  if  the  pe- 
tition set  out  the  amount  of  stock  proposed  to  be  subscribed  ; 
if  that  amount  was  not  greater  than  the  amount  to  which  the 
township  was  limited  by  the  act ;  if  the  petition  designated  the 
railroad  company  ;  if  it  pointed  out  the  mode  and  terms  of  pay- 
ment. Of  course,  the  board  and  it  only,  was  to  decide  whether 
these  things  precedent  to  the  right  to  order  an  election  tvere  actual 
facts.  No  other  tribunal  could  make  the  determination,  and  the 
members  of  the  Board  had  peculiar  means  of  knowledge  beyond 
what  any  other  persons  could  have.  Moreover,  these  decisions 
were  to  be  made  before  they  acted,  not  after  the  election,  and  after 
the  bonds  had  been  issued. 

"  The  order  for  the  election,  then,  involved  a  determination  by 
the  appointed  authority  that  the  petition  for  it  was  sufficiently 
signed  by  fifty  freeholders,  who  were  voters;  that  the  petition  icas 
such  a  one  as  was  contemplated  by  the  laiv  ;  and  that  the  amount 
proposed  by  it  to  be  subscribed  was  not  beyond  the  limit  fixed 
by  the  Legislature. 

"  So  also  the  subscfjuent  issue  of  the  bonds  containing  the 
recital  above  quoted,  that  they  were  issued  'by  virtue  of  and  in 
accordance  with  '  the  legislative  act,  and  in  '  pursuance  of  and  in 
accordance  with  the  vote  of  three-fifths  of  the  legal  voters  of  the 
township' was  another  determination,  not  only  of  the  result  of 
the  popular  vote,  but  that  all  the  facts  existed  which  the  statute 
re(iuired  in  order  to  justify  the  issue  of  the  bonds. 

"//  is  to  be  observed  that  every  prequisite  fact  to  the  execution 
and  issue  of  the  bonds  7vas  of  a  nature  that  required  examinatiou 
and  decision.  The  existence  of  sufficient  taxable  prn|jcrty  to 
warrant  the  amount  of  the  subscription  and  issue  was  no  more 
essential  to  the  exercise  of  the  authority   conferred  upon  the 


2l6 

Board  of  County  Commissioners,  than  was  the  petition  for  the 
election,  or  the  fact  that  fifty  freeholders  had  signed,  or  that 
three-fifths  of  the  legal  voters  had  voted  for  the  subscription. 
These  are  all  extrinsic  facts,  bearing  not  so  much  upon  the  au- 
thority vested  in  the  Board  to  issue  the  bonds,  as  upon  the  ques- 
tion whether  that  authority  should  be  exercised.  They  are  all, 
by  statute,  referred  to  the  inquiry  and  determitiation  of  the  Board, 
and  they  were  all  determined  before  the  bonds  and  coupons 
came  into  the  hands  of  the  plaintiff.  He  was,  therefore,  not 
bound,  when  he  purchased,  to  look  beyond  the  Act  of  the  Legis- 
lature, and  the  recitals  which  the  bonds  contained." 

If  we  make  application  of  these  principles  to 
the  case  of  Dupont  Street,  we  will  find,  that  the 
recital  by  the  Board  that  the  bonds  are  issued 
under  the  provisions  of  the  Act,  conclusively  es- 
tablishes the  giving"  of  the  requisite  notices  and 
the  other  facts  hereinabove  stated,  if  the  sufficiency 
of  thc^se  notices  and  other  facts  were  a  "  fact  of  a 
nature  that  required  examination  and  decision," 
and  if  a  "fair  construction  of  the  law  authorized 
the  officers  issuing  the  bonds  (the  Board)  to  as- 
certain, determine  and  certify "  the  exisience  of 
the  facts.  On  the  other  hand,  the  recital  will  not 
be  conclusive,  if  the  sufficiency  of  these  notices 
and  other  facts  were  determinable  "  by  reference 
to  some  express  and  definite  record  of  a  public 
character,"  or  was  '"to  be  ascertained  and  deter- 
mined by  some  persons  or  tribunal  other  than 
those  authorized  to  issue  the  bonds." 

It  is  clear,  I  submit,  that  the  question  of  the 
sufficiency  of  the  publication  involves  investiga- 
tions of  fact  which  "  require  examination   and  de- 


217 

cision,"  and  could,  at  no  time,  be  ascertained  "  by 
reference  to  some  express  and  definite  record  of  a 
public  character." 

It  is  equally  clear,  I  submit,  that,  if  the  County 
Court  has  no  jurisdiction  of  the  question,  the 
Board  of  Commissioners,  who  perform  these  va- 
rious duties,  are.  by  "a  fair  construction  of  the 
law,  authorized  to  ascertain,  determine  and  cer- 
tify" the  sufficiency  of  their  own  acts. 

If  what  I  have  already  contended  for,  as  to  the 
effect  of  the  recital  in  the  bond,  is  correct,  that  re- 
cital establishes,  in  itself,  upon  the  plaintiff's  own 
theory  of  the  law,  every  condition  essential  to  the 
validity  of  the  bond,  except  the  resolution  or  order 
of  the  Board  of  Supervisors  and  the  judgment  of 
the  County  Court.  The  resolution,  I  have  already 
endeavored  to  show,  was  reoularl\'  adojjtcd  ;  and 
there  is  no  question  as  to  regularit)-  of  ihe  judg- 
mc:nt  of  the  County  Court. 

VI. 

Tin:  Cirv  OF  San  I-'raxcisco  is  kstuiti-.d  to  dknv 

THE  VALIDIIV  Ol'  ITIJ'.SK  Ii(;Nl)S.  HKCAUSK  (l)  I  llS 
RETENTION  OF  Till':  FRIHTS  OF  TIIF  lU^NDS  ES- 
TOPS   Fr     FROM     ALLE(;i\(;     ANV     1  \  lOR.M  AIJI  \      IN 

TIM'.  i'RO(:FFi)iN(;s   Willi  II    i.i:i>    ri'    lo  i  iii';  issue 

OF  THE  I'.ONDS;  AND,  (2):  ITS  (AVN  ACTION  IN 
VOLUNTARrLV  AD01'TIN(;  TIN',  ST-VTini',  AND  REAR- 
ING THE    RENEFITS     fONFKRRED     I'A      IT,    ESTOPS    IT 


2l8 


FROM  AVOIDING  THE  BURDENS    WHICH  IT  IMPOSES, 
UPON  THE  GROUND  OF  ITS  UNCONSTITUTIONALITY. 

I.  Nothing  is  better  settled  in  the  law  of  mu- 
nicipal bonds  than  that  the  municipality  is  estop- 
ped by  its  retention  of  the  benefits  of  the  bonds 
from  setting  up  any  irregularity  in  their  issue; 
the  insufficiency  of  the  publication  of  the  resolu- 
tion of  the  Board  of  Supervisors,  or  of  the  notices 
given  by  the  Commissioners,  or  the  irregularity 
in  the  assessment,  or  the  misconduct  of  the  Board 
are  matters  which  cannot  be  set  up  by  the  City  as 
lonor-  as  it  retains  the  fruits  of  the  bonds. 

These  bonds  were  issued  in  payment  of  land 
taken  for  a  certain  public  street,  which  the  City  of 
San  Francisco  acquired  title  to,  took  possession  of, 
and  enjoys  to  this  day  as  a  public  thoroughfare. 
Under  these  circumstances,  the  City  is  not  per- 
mitted to  assert  any  irregularity  or  informality  in 
the  issuance  of  the  bonds. 

That  this  is  well  settled  in  this   State  and   else- 
where, see  : 

Nevada  Bank  vs.  Steinmetz,  64  Cal.,  314. 

Meyer  z>s.  Brown,  3  W.  C.  R.,   761, 

Supervisors  z>s.  Schenck,  5  Wall.,  772. 

Jones  on  R.  R.  Securities,  Sees.  280-282. 

County  of  Davies  vs.  Huydekoper,  98  U.   S., 

98. 
County  of  Moultrie  vs.  Fairfield,   105   U.   S., 
380. 


2  19 

County  of  Ray  vs.  Vansyckle,  96  U.   S.,   675. 
Commissioners  vs.  January,  94  U.   S.,  202. 
Pendleton  County  vs.  Amy,  13   Wall.,  297. 
Rogers  vs.  Burlington,  3  Wall.,  654. 

2.  The  City  of  San  Francisco,  having,  by  its 
Board  of  Supervisors,  voluntarily  declared  its  ac- 
ceptance of  the  provisions  of  the  statute,  and  hav- 
ing, by  its  own  free  will,  given  vitality  to  an  Act 
which  would  otherwise  have  remained  inoperative, 
and  having,  through  that  Act,  obtained  an  advan- 
tage in  the  widening  of  one  of  its  streets,  can  not 
now,  for  the  purpose  of  avoiding  the  burdens  im- 
posed upon  it  by  the  Act,  allege  its  unconstitution- 
ality. 

The  same  rules  of  universal  justice  and  right 
which  apply  to  the  conduct  of  individuals,  apply 
equally  to  municipalities.  As  was  said  by  this 
Court,  in  Meyer  vs.  Broiun,  "  there  is  no  more 
reason  to  permit  a  municipal  government  to  re- 
pudiate its  solemn  obligations,  entered  into  for  val- 
ue, than  there  is  to  p'jrmit  an  individual  to  do  so. 
Good  faith  and  fair  dc^aling  should  be  exacted  of 
the  one,  equally  with  the  other." 

It  is  not  in  accordance  with  gootl  faith  and  lair 
dealinir,  and,  I  mii^ht  add,  would  wax.  Ijc  consistent 
with  common  sense,  to  permit  a  person  voluntarily 
to  reap  the  benefit  of  a  statute,  and,  at  the  sauK; 
time,  avoid  its  burdens  I>)   claiming   that    it    is   un- 


220 

constitutional.  Qtd  sentit  co^nmodum  sentire  debet 
et  onus,  is  a  maxim  as  old  as  the  science  of  juris- 
prudence. 

It  is,  accordingly,  well  settled,  that  one  who,  by 
his  own  voluntary  action,  sets  an  Act  of  the  Legis- 
lature in  motion,  or  is  active  in  reaping  its  benefits* 
can  not  set  up  its  unconstitutionality,  nor  the  ir- 
regularity of  proceedings  taken  under  it,  to  avoid 
its  burdens. 

This  subject  I  have  already  sufficiently  dis- 
cussed. 

In  the  case  at  bar,  the  obligation  springing  from 
these  bonds  is  sought  to  be  avoided  on  the  ground 
of  irregularity  in  the  proceedings,  and  unconstitu- 
tionality in  the  Act.  A  specimen  of  these  grave 
irregularities  is  found  in  the  objection  that  the 
ordinance  which  appears  regularly  adopted  and 
approved  in  the  records  of  the  Board  of  Supervis- 
ors was,  on  one  day,  published  in  the  supplement 
instead  of  in  the  body  of  a  newspaper.  For  this 
insignificant  defect — if  defect  it  be — the  city  claims 
the  right,  while  retaining  all  the  advantages,  to 
avoid  all  the  obligation,  of  one  million  dollars  of 
bonds  issued  by  it.  Is  this  justice  ?  Is  this  fair 
dealinof  ?  Would  not  such  conduct  be  considered 
dishonorable  in  a  private  citizen  ?  Can  the  city — 
the  aggregation  of  individuals — honestly  do  what 
it  would  be  dishonest  in  any  individual  member  of 


221 

it  to  do  ?  As  said  by  the  Supreme  Court  of  Iowa, 
on  a  similar  occasion:  "It  would  be  manifestly 
against  every  principle  of  justice,  to  allow  the  tax- 
payers of  the  towmship  through  the  defendant,  to 
escape  liability  from  a  tax  for  so  slight  a  defect,  if 
it  be  one,  under  the  circumstances  stated."' 

The  same  reasons  apply  to  the  alleged  uncon- 
stitutionality of  the  Act.  The  City  has  taken  the 
land  for  a  public  use  ;  it  uses  it  to-day  as  an  av^- 
enue  of  travel.  The  property  which  it  has  taken 
destroyed,  or  damaged,  it  has  paid  for  with  these 
bonds.  Can  the  City  now  stultify  itself,  by  alleg- 
ing that,  all  the  while,  the  law  under  which  it  acted 
was  unconstitutional — -was  no  law  ?  Is  the  law 
good  to  enable  it  to  hold  on  to  what  it  has  got, 
but  bad  to  enable  it  to  shirk  the  payment  which 
it  has  promised  ?  Would  that  be  honesty  or  fair 
dealing  ? 

I  submit,  that  the  estoppel  upon  tlie  City  is 
complete,  and  shuts  it  off  from  the  defense  of  ir- 
regularity in  the  proceedings  or  unconstitutionality 
in  the  Act. 

VII. 

Il  I  III.  l;oM)S  .\KI.  \Ai,II)  .\(;AINST  TIM.  MIMCI- 
rVI-UV,  IIIKIK  VAI.Ihl'IN  CANN'ol  l;l-.  AilACkKh 
15V    A.W     MIMin.k    Ol       MM.     M  T  M<   1  |'A  j  ,|  IN  . 

If  the  cil)-  of  Sin  I' r.uicisco  CrUinol    set   up    ;iny 

'  Thi;  13.  (J.  R.  M.   K.  Cw.  vs.  Stcw.irl,  39  Ir)w;i,  2O7,  270. 


222 

Irregularity  in  these  proceedings,  or  any  unconsti- 
tutionality in  the  Act,  it  is  evident  that  the  indi- 
vidual taxpayers  therein  can  not.  If  the  city  is 
bound  by  the  obligations  of  these  bonds,  the  individ- 
uals who  compose  the  city  are  equally  bound.  As- 
sume that  a  suit  was  brought  to-morrow  against 
the  City  to  recover  upon  these  bonds.  If  the 
propositions  for  which  I  have  contended  are  sound, 
the  City  could  not  set  up  either  irregularity  in  the 
proceedings  or  unconstitutionalitv  in  the  Act.  A 
judgment  would  necessarily  go  against  it,  payable 
out  of  the  special  tax  provided  by  the  Act.  Now, 
if,  when  that  tax  comes  to  be  collected,  each  indi- 
vidual taxpayer  can  set  up  the  defense  which  the 
City  could  not,  then  the  estoppel  against  the  City 
is  a  mere  empty  farce. 

What  do  we  mean  when  we  say  that  a  City  is 
bound  by  obligation  ?  We  mean  that  the  human 
beings  composing  the  corporation  are  bound,  each 
according  to  his  legal  proportion.  What  do  we 
mean  when  we  say  that  a  city  is  estopped  to  deny 
an  obligation  ?  We  mean  that  the  human  beings 
composing  the  City  are  each  estopped  to  deny  his 
proportionate  share  of  the  burden  of  that  obliga- 
tion. When  we  say,  therefore,  that  the  City  of 
San  Francisco  is,  by  its  conduct,  estopped  from 
setting  up  irregularities  in  these  proceedings  or 
unconstitutionality  in  this  Act,  we  simply  mean 
that  certain  officers,  made,  by  law,  the  agents  of  a 


certain  number  of  men,  livino^  in  a  desio-nated 
region,  have  so  acted,  in  their  representative  capa- 
city, that  the  persons  whom  they  represented  are 
bound  or  estopped. 

If  this  is  not  the  meaning  of  these  legal  phrases, 
they  mean  nothing.  I  have  shown  that  a  munic- 
ipality which  has  issued  bonds  is  estopped  by  a 
retention  of  the  benefits  from  alleging  irregular- 
ities in  the  proceedings.  This  has  always  been 
insisted  upon,  and  considered  as  a  valuable  pro- 
tection to  the  holder  of  the  bond.  But,  of  what 
value  is  it,  if  each  individual  taxpayer  in  the  County 
is  not  bound  by  the  same  estoppel  ?  Of  what 
value  is  this  estoppel  against  the  County,  if,  when 
the  tax  to  pay  the  bonds  comes  to  be  collected, 
each  indivilual  taxpayer  may  defeat  it  by  setting 
up  these  irregularities  ?  If  estoppel  upon  the 
County  does  not  mean  estoppel  upon  every  tax- 
payer of  the  County,  it  amounts  to  nothing  and 
means  nothing. 

If,  in  the  present  case,  the  City  is  estoppcxl,  then, 
so  an-  the  plaintiffs. 

In  conclusion,  I  submit  : 

FirsL  The  Dupont  Street  Act  is,  in  ascM',  con- 
stitutional, and  all  the  steps  requin-d  to  be  taken 
undir  it.  to  give  validity  to  the  bonds,  have  been 
duly  taken. 

Secondly.       The  judgme-nt  of  the  County  Court 


224 

is,  in  the  hands  of  a  bona  fide  holder  of  the  bonds, 
a  shield  against  all  assaults  upon  the  constitution- 
ality of  the  Act,  and  the  regularity  of  the  proceed- 
ings. 

Thirdly.  The  ordinance  having  been  regu- 
larly passed  by  the  Board  of  Supervisors,  and  the 
judgment  of  the  County  Court  being  regular  on 
Its  face,  the  recital  in  the  bonds  that  they  are  issued 
in  pursuance  of  the  provisions  of  the  Act,  is  a 
conclusive  adjudication  in  favor  of  a  bona  fide 
holder,  that  all  the  steps  between  the  ordinance 
and  the  judgment  have  been  duly  and  regularly 
taken. 

Fourtldy.  The  City  is  estopped,  by  its  conduct 
in  voluntarily  adopting  the  Act  and  reaping  all 
its  benefits,  from  denying  the  consti:utionality  of 
the  statute  and  the  regularity  of  the  proceedings, 
and  this  estoppel  extends  to  every  landholder  of 
the  district. 

It  is  submitted,  that  the  one  million  dollars  of 
Dupont  Street  bonds,  issued  by  the  city  of  San 
Francisco,  are  valid. 


7  Si      1 


UNIVERSITY  OF  CALIFORNIA  AT  LOS  ANGELES 

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